Inquest Into The Manner And Cause Of Death Of Neil Summerell

IN THE CORONER'S COURT ) IN CANBERRA IN THE ) CD 280 OF 1999 AUSTRALIAN CAPITAL TERRITORY ) INQUEST INTO THE MANNER AND CAUSE OF DEATH OF NEIL SUMMERELL Neil Summerell died at The Canberra Hospital on 3 December 1999. A post-mortem revealed that his death was due to extensive blood loss from acute gastric erosions following severe scalding of the trunk and upper left leg. The scalding, which ultimately lead to the development of the acute gastric erosions, occurred at Neil's place of residence, [redacted] Place Kambah ([redacted]). This address is a residence administered by the disability program of the then ACT Community Care.

Neil had been a resident at [redacted] since about January 1999. The evidence before the Coronial Inquest held into the manner and cause of his death would indicate that the burns were occasioned in the early morning of 29 November 1999.

Neil suffered from a number of disabilities which had resulted m his residential situation at [redacted]. He was born on [redacted] 1965 and suffered from a moderate developmental disability. Additionally he suffered from Epilepsy particularly in the form of drop Epilepsy, he had poor vision and suffered a restriction in his capacity for hearing. He also suffered from night-time and occasionally day time incontinence. He was in many ways quite independent and self-caring. He was able to communicate to a limited degree and engaged in work at Pack'n Post, a Koomari facility, and also spent time at Sharing Places. He was a person who followed a strict routine in relation to his activities and the evidence would suggest that

if a change occurred to his regular routine this caused him uncertainty and perhaps indeed distress. The evidence also indicates that he had a very high pain tolerance.

Neil had resided with L'Arche Community from about 1982. His family at all times maintained a close contact and involvement with him. A history of Neil's contact with Disability Services is set out in the submissions of the Community Advocate and I am grateful to her for her careful summation of the evidence and her submissions generally. The Community Advocate indicates; "In early July 1998 Mr Summerell was admitted to the Psychiatry Unit of TCH (The Canberra Hospital) following apparent behavioural problems presenting a danger to himself and others. The L'Arche Organisation indicated that because of his unmanageable behaviour he could not return to their care following discharge, thus he was evicted from his home of 16 years. Respite care was arranged. However there was another admission on 23 July 1998 following Police involvement because of his alleged violence, presumably in response to his fears about the threatening change to his home accommodation. He was discharged to the care of his sister on 27 July 1998.

Following an extended stay with his family, where his behaviour presented no problems, Mr Summerell effectively became homeless. Concerted multi-agency efforts coordinated by the OCA (Office of the Community Advocate) to have him return to his home with L'Arche failed as it was concluded that he was no longer suitable for their community living arrangements. A funding application for an alternative form of care was not successful.

He was placed in disability program respite care in August 1998, where there were no reported issues with his behaviour. Following protracted negotiations with the purchasing department, problematic because of resource constraints, he was ultimately given a permanent home with the provider of last resort, the disability program, in January 1999". (Submissions of the Community Advocate 14 May 2001.) This history would reveal that. Mr Summerell lead a reasonably independent, but supported, life at the L'Arche community between about 1982 and 1998. There is some evidence before the inquest to suggest, that for a reason, which is not entirely clear, problems arose in relation to Neil's behaviour in about 1998 and to s<;>me extent these problems are reflected in an increase in the drop seizures from which he suffered. _ There is abundant material that would

indicate that during his period of residence at [redacted] from January 1999 until November 1999 the drop seizures were a regular and frequent occurrence and indeed a review had been undertaken by various medical practitioners to seek the cause for this increase. Some adjustment was made to the medication regime but it does appear that the drop seizures, in particular, continued to be a problem. Additionally the work capacity of Neil was affected by drowsiness. There is a suggestion that this drowsiness may have been a result of a medication imbalance, but it is not absolutely clear on the evidence.

[redacted] Place Kambah: [redacted] Place Kambah was the home of Mr Summerell from about January 1999 until his injury on 29 November 1999. [redacted] is a house then operated by ACT Disability Services and operated on a basis of 24 hour care for the residents which included Mr Summerell. The staffing arrangements were that carers were employed principally by Disability Services but with some casual employees provided on contract by Capital Health Call Pty Ltd (a company which has since gone into administration). I do not intend to canvas in any detail the staffing or management arrangements at [redacted] but will instead attempt to focus in more detail on the events of 28 and 29 November 1999 to attempt to ascertain how Mr Summerell suffered the injuries which ultimately lead to his death.

[redacted] House is staffed during the night by a worker who is specifically employed for a sleepover. The carer on this particular occasion was a Mr Julian James Cahill, who was a casual employee provided by Capital Health Call. Mr Cahill had not been rostered for duty for the evening of 28/29 November but was called in on very short notice to fulfil the role of the sleepover carer. Mr Cahill had some previous contact with Mr Summerell and in his evidence indicated that he was familiar with the various restrictions which Mr Summerell's condition imposed upon him. I shall return in more detail in due course to Mr Cahill's evidence but it is sufficient to say at the introductory stage that Mr Cahill's evidence was not entirely satisfactory and he presented as a somewhat arrogant, opinionated person who rather flippantly described his role in the events of 28/29 November 1999. Briefly Mr Cahill indicates that there was no disturbance during the course of the evening and at his departure, somewhat rapidly, in the morning he had no reason to think that any of the residents, including Mr Summerell, were out of their beds. Mr Cahill vigorously denied any suggestion that any activity occurred before, or at the time of the handover which indicated that Mr Summerell had sustained the injury.

Mr Cahill was relieved from his sleepover by Mr Allan Lotfizadeh. Mr Lotfizadeh was also a casual employee of Capital Health Call. Mr Lotfizadeh's evidence was more unsatisfactory than Mr Cahill's evidence. The evidence of Mr Lotfizadeh indicated that he had falsely claimed qualifications in order to obtain the employment with Capital Health Call and that his actual qualifications did not appropriately qualify him to carry out the work that he was doing.

He explained, and I accept his explanation, that he was desperate to obtain employment in this particular field and indeed genuinely felt that he had proper and appropriate qualifications to do the work. It was for this reason that he mislead his employer and arrived at a situation, which it would seem on balance, that he was not properly equipped to manage. Mr Lotfizadeh states that when he arrived at about 6am Mr Summerell was screaming. This is of course denied by Mr Cahill. On the balance of the evidence, which I will look at in more detail in due course, I am not able to accept Mr Lotfizadeh's description of Mr Summerell's screaming at his arrival at about 6am.

The general body of evidence would tend to suggest that Mr Summerell took himself to have a shower sometime around about 6:30am, as was his custom, and probably as a result of a drop seizure, he fell into the shower with only the hot water running.

The evidence indicates that Mr Summerell had a very substantial number of drop seizures which were of very short duration; some of the seizure reports refer to periods as brief as 35 seconds. The only logical explanation available for the injury, and in particular the pattern of the burns observed on Mr Summerell in due course, was that his body was inside the shower recess but his feet remained outside the shower recess.

The evidence of the phone calls made by Mr Lotfizadeh would clearly indicate that he did not become concerned about the condition of Mr Summerell until about 7:12am when he rang Mr Daley at Desailly. A series of phone calls took place between that time and 9:00am when Ms Davidson arrived at the residence and on her direction Mr Lotfizadeh took Mr Summerell to the Hospital where he was admitted.

The burns sustained by Mr Summerell do not, on the evidence, appear to have been life threatening. They were serious burns to approximately 17 percent of his body but on their own did not represent, as I say, a life threatening situation. As a result largely of the disabilities suffered by Mr Summerell he was admitted to the hospital.

I shall look at the medical evidence and the hospital admission in some detail in due course, but I am content to indicate at this preliminary stage that there is nothing in the evidence before me that would suggest that The Canberra Hospital was in any way negligent in their treatment of Mr Summerell. The development of the type of ulcers which ultimately lead to Mr Summerell's death is apparently a common consequence of burns and indeed there is a medication available which if prescribed and administered does tend to prevent the development of such ulcers. The balance of the evidence however suggests that this medication is not prescribed in circumstances such as existed with Mr Summerell. Dr Kennedy, who disputed some of the other medical evidence, indicated, as I understand his evidence, that the medication is prescribed only to burn victims who are severely burned and are generally to be found in intensive care units by reason of their injury.

There is no doubt however on the evidence before me that Mr Summerell's death arose as a direct consequence of the burns that he sustained while in the care of ACT Disability Services on 29 November 1999 although his ultimate death arose as a result of ulcers which developed consequent upon the burns.

The evening and morning of 28/29 November 1999: There is considerable dispute between the relevant witnesses as to the above events and I have therefore summarized in some detail the evidence.

Ms Robyn Betty Page Ms Page indicated she was a Disability Service Officer grade one and was a casual. She indicated that she worked up to 76 hours a fortnight, at various houses. She had been to approximately six different houses, during the year 1999.

She indicated that she had done an introductory program when she first came into disability services, apart from that she had her senior first aid certificate, and had been working in disability programs for 6 - 7 years.

She originally started with Michelle's Home Care and Nursing, which subsequently became Capital Health Call Pty Ltd.

Ms Page had obtained her first aid certificate in the army some three years ago, this was a five day course. She indicated that it was now coming up for renewal.

She indicated that the introductory program that she participated in for Disability Services was for about three weeks and consisted of an introduction into disabilities, how to care for disabled people and paper work. Ms Page believed employees of Disability Services had conducted the program.

Ms Page described her duties, and indicated that when she arrived at a new house she in effect went in cold and read the Individual Plans (IP) for each individual resident and went from there.

She was shown the IP of Mr Summerell, which is a substantial document, and indicated that the first time she went to the house, she did a quick read from cover to cover, which would have taken her approximately 10 minutes. She indicated further, that she normally tried to get in a bit earlier so she could read the IPs before she commenced duty.

Ms Page indicated that there was a white board at [redacted] and that this whiteboard was used to put up the activities in which theindividual residents were to engage during the course of the week.

Ms Page indicated th.at when she went to the house (I assume on the first occasion) she was told by someone that Mr Summerell suffered from drop seizures, she did not remember whether that was written in any book.

She described her memory of a hand-over on a particular morning which involved her being told where the IP was so that she could read it, then there was a hand over of money and

medication and some verbal comments on what had happened in the earlier shift. She also indicated that she was given the relevant keys for the premises.

Ms Page came on duty on the 28 November to commence on the 3pm shift. She indicated that she had been to the house previously but not for a long time. On the 28 November there were two residents Mr Summerell and another man called Keith. The third resident Ron was at home and not at [redacted] on that day. Ron was not expected back to [redacted] during her shift.

She recalls being told that Neil had had a seizure during the course of the shift that she was relieving.

Ms Page relieved Ms Davidson who left the premises at about 3.05pm Ms Page indicated that she believed that she had seen in the IP that if Neil had a shower she was to stand outside the bathroom door.

She was asked if, when she stood outside the bath door whether the bathroom door would be open or closed, and she made the following comment: "Well, I'd say it'd be closed but I had it ajar, but because I knew he'd had the seizure in the morning, I actually didn't feel comfortable even just standing outside the door, I went in and checked a couple of times and washed his back. "(T14).

She indicates that she believed that Neil had his shower before dinner.

She further indicated that there was no discussion about him having a shower, "he just decided to go in and have a shower." Ms Page was then shown the plan of the house and indicated that Bed 2 was the sleep over room and office.

She indicated that Bed 4 on the plan [Exhibit 6], was Neil's bedroom. Bed 2 is situated next to the laundry, which is in tum situated next to the bathroom. It is probably true to say that Bed 4 is closer to the bathroom than Bed 2; Bed 1 which is at the front of the house was not used.

She again indicated that Mr Summerell had not told her that he was going to have a shower and she agreed that was what she expected.

Ms Page stated as follows " he did close it and I ajarred it and I did knock a couple of times and asked if he wanted his back washed and I went in and gave his back a wash."(T17).

She indicates that she used a washer on his back and that she noticed nothing about his back.

She indicated that she was not aware of the fact that Mr Summerell had burnt himself previously in the shower. She described the water as being warm.

Ms Page again indicated that she noticed nothing unusual including redness on his back, legs or arms, while he was in/out of the shower.

Mr Summerellleft the shower and returned to his room and then came out to the family room and had dinner.

Ms Page indicated that Mr Summerell made no complaints about anything prior to going to bed and appeared to be sleeping peacefully in bed.

Ms Page stated that her shift was to finish at 1Opm, but that nobody had arrived at that time and about 10:20pm she rang Lyn Grayson, following her conversation with Ms Grayson a worker arrived at about 10:50pm to replace her she did not recall that persons name, but he was a male.

Ms Page indicated that she had a hand over with that male worker, and advised him that Keith was still up although he was asleep on the lounge, that she had checked Neil, that he had a seizure in the morning and she indicated to him where the IP folders were. She observed that he did not read any of IP folders while she was there. She left at 11pm.

She indicated that she was due to have another shift at the house on Wednesday and that she was rung at home and advised that Mr Summerell was in the hospital.

Cross-examination by Ms McGregor: Ms Page was asked about her understanding of certain examples of supervision. She indicated that if she was to supervise someone going to the toilet, she would stand outside the toilet door and just supervise them going, that if she was to supervise them having a shower she indicated that you supervise them, and if they needed assistance washing you helped with washing. She was also asked whether she would in fact go into the shower area, and she indicated that would depend, as a lot of people like their privacy, and if that was so, she would stand outside the door while they were having a shower with the door ajar.

She indicated that if an instruction in the IP said that people were not to be left alone she accepted that instruction meant what it said and that she would be present either in the toilet area or the shower area as required.

Cross-examination by Mr Crabb: Ms Page agreed that the industry standard required that whenever you went to a home you were required to look at the IPs.

She also agreed that she had heard that hot water could bring on a seizure.

Ms Page was asked some questions arising out of answers she had apparently given in the Police interview and finally stated "/ wasn't at the door the whole time, but close enough to the whole time." (T30).

She indicated that she could hear the shower from the living room and that she went from that room/the family room from time to time to keep an eye on Mr Summerell.

Cross-examination by Mr Bayliss: Ms Page indicated that the training course that she had had with the Army in first aid involved, amongst other things, a full day on bums. She was of the view that if Mr Summerell had had a bum to his back on the evening she was on duty she would have noticed it.

I directed her to the fact that in the statement that she had made to Police she had indicated that Mr Summerell had had his shower after dinner. She accepted that that was probably correct.

Re-examination by Mr Refshauge: Mr Refshauge drew Ms Page's attention to an apparent inconsistency in the requirements for supervision as expressed in the IP, under the heading; "Bathing, showering and drying" it was indicated that Neil must be supervised when bathing; under the heading "Alert", the following appears "do not leave alone while showering"(T35). Ms Page agreed that these were inconsistent but stated that she stood outside the door.

Ms Page agreed that by working in the disability services you ascertained from time to time if persons in that service had been injured in any way. She indicated that she was not aware of any suggestion that Mr Summerell had a previous bum injury in the shower in April 1999.

She had heard no talk to this effect and there was nothing contained in the IP to this effect.

Mr Julian Cahill: Before giving his evidence I pointed out to him that he was not being represented by any of the people at the bar table and he indicated that he understood that.

Mr Cahill was employed by Capital Health Call Pty Ltd.

He indicated that he had worked with Capital Health Call for nearly two years and that he had been in the Disability sector for nearly three years, prior to Capital Health Call he had been employed with Sharing Places.

Mr Cahill indicated that he held a first aid certificate and that he had passed some competencies when he was with Sharing Places.

He indicated that when he was with Capital Health Call he undertook the Certificate 3 Traineeship, this appears to be an internal training program run by Capital Health Call. He indicates that he successfully completed his Certificate 3.

He indicated that he was a casual worker and worked between 70 and 90 hours a week, possibly less.

He explained his procedure at the commencement of a shift.

He indicated that he regularly did sleep overs and described his understanding of a sleepover.

He indicated that as a general rule he usually got a days notice in relation to a shift but sometimes it could be less as it was on this particular occasion, in November.

Mr Cahill indicated that he had not been working during the day of that particular day and that he had been contacted at approximately 10:20pm by a person who he described as desperate requesting that he do a sleep-over. He indicated that he had been playing cricket at a friend's place during the day and that he would have had eaten at his friend's house, he indicated further that he didn't drink any alcohol that day. He indicated however, that he does drink on occasion but stated that he was able to say clearly that he had not had anything to drink that day because he had checked it with a friend of his.

He indicated that this was the first occasion he had worked at [redacted] but that he knew Mr Summerell from his work at Sharing Places.

Mr Cahill was asked what did he know of Mr Summerell and he stated as follows "I knew he was intellectually disabled, I knew he was an epileptic, I knew he had mobility problems, I knew he was sight impaired, hearing impaired. He generally needed full support most of the time." (T46) He indicated that Mr Summerell went to the toilet himself but he needed supervision, which he described as leaving the door half-open.

Mr Cahill could not remember ever showering Mr Summerell but it was possible that he had.

He indicated that he had seen Mr Summerell have a drop seizure before, and indicated that these seizures were very quick and that it only took a few minutes before he was able to get up again although he almost lost consciousness.

Mr Cahill thought he arrived at [redacted] between 11 and 11:15pm. He indicated that he arrived at this time assessment based upon his memory when he gave his first statement to the Police and had no reason to move away from it. He indicated that he was met by Ms Page, he

could not recall the precise details of that meeting but she was someone he had met before at some point in time.

He indicated what occurred during the hand over, which covered a quick talk about the day or the evening and there was a money hand over.

He thought Ms Page was a permanent house member in that she was employed by the Disability program; he did not know how many times she had worked at [redacted] or whether she in fact worked there on a permanent basis.

He remembered that they both talked about Keith for a short period and that he was still awake.

Mr Cahill indicated that he was going to go and check on Mr Summerell, but that Ms Page had told him not to disturb him and he did not check him.

He was asked whether he checked him at any time and his answer was No.

He thought the hand over had taken about tenminutes, and then Ms Page had left, he stayed up with Keith for a while and then Keith went to bed and then Mr Cahill went to bed, he thought he went to bed about a bit after 12am, he had gone to bed fairly shortly after Keith had went to bed.

He indicated that he was aware of various records being kept at the house including the diary, the communications book and the IP file, but indicated that he did not look at any of those. He indicated further that it would not be normal for him not to look at that material, and he thought it occurred on this occasion because he knew Neil very well and Keith was up when he got there.

He indicated that if there had been an alert relevant to the night shift he thought it would have been brought to his attention. He did not recall any discussion about medication at the hand over.

Mr Cahill indicated that he thought the hand over for a sleep over would be a bit shorter than a hand over for a day shift because of the different activities that were engaged in during the day.

He indicated that he was relying totally upon what Ms Page told him before she left for his information of what might occur during the evening.

He was then asked what Ms Page had told him about Mr Summerell's nighttime habits to which he replied "Nothing" (T52).

He indicated that at about !2:30am he got up because Keith had got up and he checked on Keith but did not check on Neil. He then returned to bed and the next thing he remembered was being awake in the morning.

He was then asked the following question; "What do you understand your responsibilities to be in a sleepover situation?" Answer: "/understand my responsibilities are to keep the house safe. " Question:"and how do you do that?" Answer: "lock the doors, to make sure everything's in order and get ready for bed." Question:"And what did you do in relation to that on this evening?" Answer: "Well it was a nice neat house. Everything was straightforward. There was nothing that needed to be done, so I went about going to sleep."(T53).

He indicated that he remembered looking at the alarm at 5:45am and then lying in bed for another half hour.

He was expecting to be relieved at 7am, this being the general rule, but he indicated that he had been told the night before that he would be relieved by someone at 6am.

Subsequently a number of other questions were asked about times and he accepted it would seem that he was mistaken when he said he had looked at the clock at 5:45am, and what he meant to say was that he looked at the clock at 5:15 and that he had got up at 5:45am.

He stated that when he got up he had a cup of coffee and a cigarette and waited for the next staff. He thought he had gone to the toilet but he had not had a shower. He did not look in on either of the residents. He was not conscious that either of them was up. He indicates that his relief staff was Mr Lotfizadeh, who arrived at about 6am. He then indicates that they did a money hand over in the office and then in effect left, he stated "We didn't really say much to each other." (T55).

He was asked the following question: "You didn't discuss anything about any of the residents?" Answer: "No, he was quite blunt. He didn't want to know anything from me, that's the feeling I got." (T55).

Mr Cahill indicated that he did not hear any of the residents during the course of the hand over. He did not hear any scream, shout or loud sound uttered by Neil, he was then asked the following question: "So you didn't have a conversation with Allan about any such utterance from Neil?" Answer: "No." Question: "and that's quite clear in your recollection, is it?" Answer: "Yes."(T55).

Mr Cahill indicated that when Mr Lotfizadeh arrived he was at the front door outside having a cigarette and a coffee.

He was asked the following question: "Now, are you able to say whether it's possible that Neil had a shower while you were asleep in the early hours of the morning?" Answer: "Well, I don't think I am able to say that, if he did or didn't." Question: "Can you comment on that possibility at all, one way or the other?" Answer: "Yes, I can. I- within myself- I believe I would have heard Neil bumping around. I would have heard doors open, or may have heard the shower go, the pipes, whatever, I don't know."(T56).

Cross-examination by Mr Crabb: Mr Cahill agreed that Mr Summerell did from time to time scream if he was in pain or if he was annoyed, he would raise his voice, but Mr Cahill was never aware that screaming was

part of Mr Summerell's mental condition. He denied that he had ever told anyone that screaming was part ofMr Summerell's mental condition.

He indicated that it was possible from time to time to work 24 hours a day, this involved doing a shift commencing at 2pm until lOpm and then a sleep-over, then to finish at 4pm the next day. He indicated that these shifts were a deliberate activity and were not as the result of someone not turning up to relieve him from his duty. He indicated that he had done this possibly 10-:15 times, possibly more.

Mr Cahill described a night shift which was different from a sleepover in that he was expected to stay awake. He gave as an example, a night shift he did at the Mirinjani home where he was the sole worker responsible for about 40 elderly people. His principle responsibility was to ensure "that they're breathing."(T60).

He was asked some questions concerning his failure to read any of the material present at the house, and was then asked the following question: "And why didn't you think it was necessary just to follow that up?" Answer: "well, the staff before me pointed out that Neil was okay, don't check on him, just look after Keith. Most ofthe IP stuff has to do with daily- with the guys when they're mobile.

If there's any alerts say to do with sleeping or what not, I should have been told or pointed it out, communicated about it. There's I guess not that much infonnation about the sleeping routines of clients in the IPs." (T62).

He indicated that he was not aware of any history of nighttime incontinence in relation to Mr Summerell, but was aware that he could be incontinent from time to time.

I asked him a number of questions concerning the incontinence and the prospect that Mr Summerell got up during the night as a result of this incontinence in order to have a shower.

He agreed that such a thing was possible, I then asked him "that would perhaps tend to suggest that he got up perhaps again because he'd been incontinent and had scalded himself and for some reason you didn't hear it, any of it?" Answer: "It's possible." (T62).

Mr Cahill indicated that if he had read the IP and been aware of a possible incontinence problem at night he may have checked before he himself went to sleep. He was then a_sked the

following question: "Well on any occasion, if you'd gone into a house and- on a night- not a night duty, I wont use that term, but on a sleepover and you had read material that said this person has a history of night time incontinence, would you have done anything physically, that is to say to set an alarm or whatever?" Answer: "No, I don't believe so. I most likely would have checked on him first thing in the morning if I knew that information." Question: "So that if he was to get up during the night because of an incontinence problem, your best hope is that you would wake up to be able to assist him if he needed assistance?" Answer: "Yes, I imagine so, yes." (T63).

He indicated that he was not aware of any particular physiological mechanism that would enable individuals to wake up in the middle of the night to check on someone and he accepted that if there was no noise that woke him up then he would sleep right though the night.

He indicated that his memory was that he left the door of his bedroom open that night.

He described how you could change a sleepover to a night duty shift if circumstances required that to occur.

Mr Cahill indicated that it was quite possible that Mr Summerell could have gone to the shower without making a noise.

He indicated that he didn't know whether you could hear the shower from the room he had been sleeping in, as he had never operated the shower. This was his first sleepover at [redacted].

Cross-examination by Mr Bayliss: Mr Bayliss asked him some questions about a statement that he had made at an earlier time, in which he indicated that he had observed an injury, about the size of the palm of his hand, on Mr Summerell which he thought was consistent with a bum and the injury had been to Mr Summerell's leg, it looked to Mr Cahill as if it might have been infected as it was very red around the edges.

He indicated that his instructions from Capital Health Call concerning responsibilities at a sleepover were "My responsibilities were to do a hand-over of the staff, and to take note of any infonnation they passed on and work off that." (T69).

He had earlier indicated that for the period prior to November 1999 he had averaged 3-4 sleepovers a fortnight.

He continued to explain his instructions from Capital Health Call and indicated that he was instructed to arrive at the house about ten minutes before a shift change.

He explained in some more substantial detail his memory of the conversation he had with Ms Page prior to her departure.

It was put to him that as he had not read the individual plan and was therefore not aware of the incontinence problem that Mr Summerell suffered from, would he have done anything different if he had read the plan and had been aware of the problem. His view was that except perhaps for checking on Mr Summerell before he went to bed he would not have done anything differently. He further indicated that he didn't check when he arrived to see where the bathroom or the shower was. He also accepted that there was a possibility due to the incontinence of Mr Summerell that he may have got up during the night to have a shower.

Mr Cahill was asked whether Capital Health Call had ever provided him with instructions relating to the reading of the individual plan. His answer "Well, that was usually a standard procedure." (T73). He then went on to indicate that if you didn't know the client then you would do a brief run though, but he seemed to take the view that because he knew Mr Summerell there was no need for him to read either of the individual plans.

He indicated that he had not read the red folder relating to the daily routine for casuals and that he was not aware of any specific instructions from Capital Health Call that he should read that book.

Mr Cahill stated that he was not aware of whether Capital Health Call had written instructions in relation to what he ought do at a sleep over hand over, he was aware of oral instructions but not written instructions.

He indicated that he was not aware as to whether there was any form of policy and procedure manual created by Capital Health Call relating to his activities.

He further indicated that the procedure relating to hand overs for a daily shift was quite different to the procedures for the hand over of a sleep over, particularly if he didn't know the clients. In that situation he was of the view that he would definitely look at the files. This view was based upon his practical experience rather than any instructions he believed he had received from Capital Health Call. He went on however to state that there was an instruction to read about the clients before a shift, but he was of the view that this did not always happen as there was not enough time at a hand over.

He was asked further questions about a document setting out policies for Capital Health Call casuals and indicated that if such a document did exist, he had never seen it, had never been told by anybody at Capital Health Call that it existed, and he had never been told by anybody at Capital Health Call that he should read it or studyit. He was asked the following question: "So that - sorry, but are you saying that even the instructions from your employer had been that you read the individual plan on the night of the 28'h, you would not have bothered to read the individual plan?" Answer: "Well, it's possible either way." Question: "And, is that because you knew Neil Summerell well?" Answer: "Yes, and the house was quiet, you know." Question: "But what about Keith? You didn't know him at all, did you?" Answer: "No."(T76).

He accepted that he was feeling tired at the time he arrived to take over the evening shift as he had been playing cricket during the day. He was able to recall when he had begun playing cricket.

He engaged in a debate with Mr Bayliss as to his responsibility for the residents while he was paid to be asleep. He appears to accept that he did owe a duty of care to the residents, but that, that duty of care may have been minimised by the fact that he was employed to sleep.

He indicated that he did not check Mr Summerell or Keith at all when he got up in the morning.

The allegations made by Mr Lotfizadeh as to the conduct of Mr Summerell at the time of Mr Lotfizadeh's arrival at [redacted] were put to Mr Cahill whose response was "He's a liar."(T81).

Mr Cahill indicated that he had been told about Mr Lotfizadeh's comments by a Mr Chris Robinson who was described by Mr Cahill as "My Boss." (T81).

A section of Mr Lotfizadeh's interview was quoted to Mr Cahill and he was asked to comment and his answer was "No, it's bullshit, excuse my language."(T81).

Mr Cahill appears to sum up his position as follows "I was there for a sleep over shift. I was, basically, going to go to sleep. There was no supporting clients, that I knew of "(T84).

He indicated that he did not think his late arrival had anything to do with the way he approached the sleep over. It would have been the same if he had have arrived at lOpm.

He was asked some questions by Ms McGregor concerning the injury he noticed at Sharing Places in April of 1999 and he indicated that on that occasion he had discovered the injury almost as soon as Mr Summerell attended at Sharing Places and it was not likely that he could have injured himself on that occasion at Sharing Places, but it could have occurred earlier, although Mr Cahill seemed to think that it was red raw and possibly new.

Mr Allan Lotfizadeh: Mr Lotfizadeh was employed by Capital Health Call and had been in that employment some four months prior to November 1999. He indicated that following the death of Mr Summerell, he received very few offers of employment from Capital Health Call, he indicated that prior to his employment with Capital Health Call he had worked with different Nursing Homes in Sydney and also Wollongong.

He indicated that his work with Capital Health Call was with residential disability h.ouses.

He indicated that he had not done any disability courses here but had partly completed a nursing degree course.

He indicated that he had begun that course in 1995 somewhere in Western Sydney and that he had completed more than half of that course.

He described during the early stages of his evidence something about his training and experience in relation to caring for disabled people and it seemed to be based principally on practical experience gained during his nursing degree. He indicated that he had worked in a number of retirement villages, but it does seem that his actual experience with disabled people was limited. He indicated that he had approximately two years experience with disabled people when he lived in Iran, he indicated further that he had done a Diploma in Disabilities, he described this Diploma as a part time course over one year involving three nights a week work.

Mr Lotfizadeh indicated that he had written to Capital Health Call seeking employment and that he was offered employment by them.

He appeared unclear as to what precisely had occurred when he first spoke with Capital Health Call and was not sure whether he had been given any specific instructions as to how he was to carry out his work, although he did indicate that they had told him that he should be polite and knock on the door before he entered anybody's rooms.

He indicates that at the beginning of his relationship with Capital Health Call he had some difficultly in getting shifts and the first shift that he ultimately got was at a Disability Services house where he seems to have been required to ring somebody before he went there, it does seem however that he did a shift there but did not get any more for some time.

He indicates that he then obtained some form of booklet which he used to record the shifts that he did and ultimately stated that he was doing about 30-40 hours a week.

He indicated that prior to 29 November he had done two or three shifts at Ruwold, some of these shifts however, did not involve work in the house but merely supervising residents on a social program at a club.

Mr Lotfizadeh indicated that he could not recall receiving any training from Capital Health Call other than advising him to speak to the House Managers and get their instructions.

He thought he had done one night shift as a sleepover and one day shift at [redacted] before November.

He outlined his usual procedure in relation to a hand-over and also to a morning shift hand over.

He attempted to describe his memory of the clothes washing procedure at [redacted], and ultimately thought that he would have put a load on the line before taking the people out on their activities.

He then began to describe his movements on the morning of 29 November and he indicated "I was a few minutes late, and when I got there I was parking. I was in my car, and then I walked out of the car, I'd seen another person waiting outside in front of the door with a cup in his hand."(T97).

He indicated that the person was standing "right in front of the door." (T97). He did not know this person and had not met him before. He apologised to the person for being late and that person replied "It's all right. Doesn't matter, no worry." (T97). They then went inside.

Mr Lotfizadeh indicated that he and the other worker went straight into the office and had a conversation in which the other worker indicated that all the residents had been sleeping when he had got there the night before, which had been about an hour late.

Mr Lotfizadeh then indicated that it appeared that Capital Health Call had attempted to contact him the evening before to do the shift performed by Mr Cahill but had been unsuccessful.

He again stated that the conversation with Mr Cahill indicated that there were no difficulties and that everything was fine and they then did the cash money hand-over. He was then asked the following question "Did you ask him anything about any of the clients in the house?"

Answer: "Not specifically at the beginning but when I heard the screaming while we were doing the handover, I heard the scream from Neil's room, that was the time that I asked him that - 'Is he all right?' and he said, 'Yes, he was fine until now, and everybody was sleeping' -that's what he said, 'And maybe that's just a behavioural problem, it's nothing to worry', that's all. And we've done the money hand-over."(T98).

Mr Lotfizadeh indicated that at the time he heard the scream Neil's door was closed. He had spent some time earlier explaining how he knew where Neil's room was.

He described further some conversation he had with Mr Cahill concerning the day's activities for the residents and indicated that he then let Mr Cahill out of the house. It was apparently necessary for this to be done as Mr Lotfizadeh then locked the door. He says as follows "...that I escort him out of the house because I had to lock the door when he went out. I've seen that Neil is coming out. He had clothes on and going towards the toilet. And I'm sure that the other person saw him too and we went to the door- I let him out- and then I went back, and when I went back..."(TlOl).

He indicates that he first saw Neil when both of the workers were coming out of the office door.

He indicated that when he came back from locking the door he saw Neil going inside his room and shutting the door.

Mr Lotfizadeh stated that he went to Neil's door and knocked on the door but Neil didn't answer, he then says that he again knocked on the door and asked "How are you?" at first he didn't answer and then he thinks he heard Neil say "So bastard" or "No bastard" he then said "And then I said, 'Where is it sore? Do you have any pain or is there any problem you have?' 'and I think he did tell me that, "his back is sore", I think." He continued as follows "And then I went towards him. He was sitting on the edge of the bed, and I went to him and I asked him, 'Can I have a look at that?' he said, "No." I said "Okay." Then "Would you like to help", because he had his clothes on, so I asked him, "would you like to have breakfast?

He said "Yes", and he came with me out of his room and we went, and he sat behind the breakfast bar- and then I prepared the breakfast for him."(TlOl).

He was asked whether he was surprised to see Neil fully dressed at that time of the morning, and indicated that he was both surprised and not surprised, firstly because he thought it was a bit early, but secondly because Neil always put his own clothes on.

He indicated that he had not attempted to have Neil have a shower before his breakfast in the morning, nor was he aware that carer's were supposed to try and encourage Neil to have a shower in the morning because of his night-time incontinence.

He indicated that he didn't recall that he had read the IP file.

He thought that his clothes were not wet at the time or "the one that was in the basket things, I think." He went on to say "Now, his underpants wasn't wet, so it wasn't indicating that he wet his bed the night before because his bed wasn't wet." He was then asked when did he check the bed, and stated "After, actually, or after his. breakfast, I went to - when I went to clean his room and pick up a bed sheet, I've seen the top sheet is a bit wet, but not the bottom one." He then went on "After I went, the manager came, I think. Then when - and house manager came - that I said, even to her, that, 'The top sheet is a wet a bit, but not the bottom part.' She said, 'Well, that's because of his wetting his bed.' I said, 'I don't think so because this part is wet like that, it's nothing- because I think the edge of the bed sheet was all wet,' so I said that, 'It wasn't a bad thing', and she said 'That's okay', take it today washing machine, which I did take it up and make the bed again"(sic)(Tl02). He indicated that he thought all of this had occurred after he came back from the hospital.

Mr Lotfizadeh indicated that he had not removed the sheets from the bed, at least in the morning. He was then asked the following question "Isn't it the case that when Ms Davidson arrived that morning, you'd already put the sheets out on the clothesline - the sheets, not the doona?" Answer "I don't think so." (T103), he went on to indicate that he thought he had taken some washing off the line but did not recall putting any washing on the line.

He was asked whether Ms Davidson, who he referred to as Jo, asked about Neil's pyjamas and sheets and he had indicated that she had not, because she had arrived to talk to other people, and all she did was to tell him to take Neil to the Hospital.

It was again put to him that Jo had asked about the pyjamas and sheets and that he had told her that he had washed them; he again indicated that he didn't think that had happened.

He was asked if he could reconstruct his three hours between the time of his arrival and about 9am when he went to the hospital, and he indicated that he may well have done the clothes but not the bed sheets, he was again of the view that he had shown the bed sheets to the House Manager after he returned from the hospital.

Mr Lotfizadeh was again asked about the three hour period, and indicated that he got Neil his breakfast and that he had then rung the House Manager, but had only got an answering machine, he had then observed Keith was up and dressed, and he then said that he asked Neil why he was screaming, and then he indicated that there was some form of dispute between Neil and Keith and he then asked Keith to leave and go to the toilet until he got his breakfast teady, he then called the House Manager again and got the answering machine and he then rang another house that was nearby. He said he called them to see if they knew anything about Neil. He said the person he spoke to at the other house said he knew nothing about Neil and perhaps he just had a behavioural problem, he also said that the other person suggested that Neil had been working outside and that maybe it was just sunburn. He then said that he approached Neil again and asked him, "If he could help him change his clothes", and Neil said "No". He then said "I seen from the back of his neck- on that time I seen that it's a bit red and it's like a- it's- it wasn't peeled, the skin, but it was like ready to peel, the skin it was like that." (Tl06).

He then said that he said to the guy at the other house about what he had seen and that the other person suggested it was sunburn. The other person suggested that he call the manager and he said that he had done that. The other person then suggested that he call the On-call manager. He said that he then called the Accommodation Support Manager and that this was a message as well, he then said that he called the On-call manager. He stated, "During those times that I was keep calling the everyone to get solve the problem with Neil, because I had concern about Neil."(T106). He said he spoke to the On-call Manager and told that person of his concerns about Neil's back, he said that the On-call Manager indicated to him that perhaps it was a behavioural problem or sunburn and she suggested giving Neil Panadol. He couldn't find Panadol and got some Panadine, Neil wouldn't take this. He then went to call Neil's Doctor but as it was after hours he was redirected to another number. He said that the person

he spoke to at that number indicated that he should wait until his own Doctor came on duty or if he was concerned to take the person to the Hospital. He then said that he called the On-call Manager again about taking Neil to the Hospital and said that the On-call Manager suggested he wait until Jo came and she would deal with it. He said he then went back to talk with Neil and gave him the Panadine. He said that he went back to talk with the On-call Manager and explained the situation, that the Doctor was not there, but that he had taken the Panadine and she told him to wait until Jo came. He indicated that he then explained to the On-call Manager that he had other duties to perform by taking people to Belconnen and he was clearly concerned about how he was going to manage that if he had to wait for Jo. He indicated that he had to be at Belconnen by either 8:00am or 8:30am.

He said that the On-call Manager told him to ring the parents and explain the problem; it seemed that he had to pick up the third member of the house at that time. He said that he spoke to the parents, and indicated that he had a problem with one of the residents and that the father asked was it Neil? And he said it was, and that the father indicated that they would take their son, Ron to Belconnen themselves. He indicated that after that he again called the On call Manager, and explained the situation to her and she told him just wait until Jo comes.

He indicated that while he was making all these phone calls he kept going in and out of the office and keeping an eye on the two residents, Neil remained sitting on the couch, and Keith was apparently in his room. .

He was shown the entry made by him in the communications book and he thought he had made that after he had been to the hospital.

He indicated that the contents of that note were true.

He was then shown the IP file and directed to the progress file notes, where he had made an entry concerning the events of the morning, and he indicated that he had done that after he had been at the hospital. He indicated that his note was also true. He was shown a copy of a record of interview held on 28 November 2000, and he accepted that the contents of that document were true.

He was then shown another interview which took place in January and he accepted that was also true.

Cross-examination by Mr Crabb: Mr Crabb appeared on behalf of Capital Health Call, and initially began by asking Mr Lotfizadeh about his employment since 29 November. Mr Lotfizadeh indicated that he had been suspended from working at Disability Houses and had pressed Capital Health Call for some shifts; he did not recall being offered shifts at the Canberra Hospital or the Queanbeyan Hospital. He indicated however that he recalled some discussion about the requirement for him to be a registered nurse to work at Hospitals, and he indicated that he was not a registered nurse.

It was suggested to him that he had told Capital Health Call that he was registered nurse, he indicated that he had said that some day he would be a registered nurse. He subsequently admitted that he may have said to someone that he was a registered nurse, but he couldn't provide them with any qualifications, as he was in fact not a registered nurse. He qualified this answer by saying that perhaps he had said that he had done the registered nurse course.

He denied that he had been refused work because of his lack of registration, and reiterated that he had been suspended because of the incident at [redacted].

It was suggested that he may have done an induction course between the 9th and 19th August 1999 and he indicated that he couldn't recall that.

Mr Lotfizadeh indicated that he believed that Capital Health Call were trying to prove that they had given him training, but that was not true, that what he had done was based upon his own previous experience, it was put to him that the course had been conducted at Hawker and ran for 10 days in August. He denied that he had attended any such course.

Some documents were produced by Mr Crabb that indicated that Mr Lotfizadeh had been at [redacted] on ten occasions.

Mr Lotfizadeh indicated that the words "No Bastard" (Tl22) had been shouted out and that he had never heard Mr Summerell shout before.

Mr Lotfizadeh was asked further questions about his conversation with Mr Summerell, which had occurred after Mr Cahill had left. He indicated that on this occasion Mr Summerell made a comment to him, which is not probably accurately recorded in the transcript, but suggests that he said that he had a sore back. Mr Lotfizadeh then said that he asked Mr Summerell could he have a look at his back and that Mr Summerell said "No"(Tl24).

Mr Lotfizadeh agreed that it was possible that he rang Desailly House at 6:30am and he said that he had a conversation with a person whose voice he recognised and that they discussed Neil Summerell's condition.

It was then suggested to him that in the first telephone call with Desailly House he had only discussed transportation during the day. He indicated that he had called them for those things but didn't think it was the first call. It was then put to him that he had rang Desailly House at 6:30am and had spoken to a Mr Daley about Mr Summerell and his transportation, he denied this. It was then put to him that it wasn't until 7:00am- 7:15 am that he had rung Mr Daley to comment about the sore back, he indicated that he didn't think so.

He denied that he had confused advice he had received from Desailly House and the On-call Manager with any comment made by Mr Cahill.

Mr Lotfizadeh again discussed the question of the timing of the washing of the sheets and seemed quite convinced that he hadn't washed the sheets until after he came back from the Hospital. He wasn't too sure about the pyjamas and said he may have done them in the morning but wasn't sure.

Cross-examination By Mr Bayliss: Mr Lotfizadeh described once again his veiw of Mr Summerell as being someone who did not normally scream out. He also accepted that he had said to Police in one of the interviews that he first heard the scream during the handover of the money.

He went on to indicate that having heard the scream which he regarded as unusual he asked Julian (Mr Cahill) about it, and Julian indicated that it was a behavioural problem and it appears they then finished the hand over, and in particular the counting of the money.

He further indicated that having heard the scream he then asked Julian "'What is that scream?' and 'Anything is wrong, that you didn't tell me?' and he said no, everything was all right, they were sleeping and perhaps that was just a behaviour problem, the scream."(T132).

It was then pointed out to him in his record of interview in January 2000, he did not mention that he said anything to Julian, but had said that Julian indicated to him as he went to the door to go and see Neil that everything was ok.

He seemed to be suggesting that at the time the scream was heard in fact he thinks that the words "Saw (sic) Bastard" or "No Bastard"(TI34) may have been said rather than just a noise by way of a scream.

It was pointed out to Mr Lotfizadeh that in the notes he had written, at the time, he had stated that Neil was screaming at the time of his arrival at the house. He accepted that he now said that the first time he heard the scream was during the hand-over.

Mr Lotfizadeh was asked by Mr Bayliss as to whether he was lying and he denied that he was lying.

He indicated that Mr Summerell had not sustained any injury while he was on shift that morning.

He indicated that Capital Health Call had never told him to read the individual plan.

And he indicated that prior going to the hospital with Mr Summerell he had no idea of what instructions existed relating to Mr Summerell showering.

He indicated that notwithstanding that he had been to the house about ten times he had not read the individual plan of any of the residents.

He accepted that he needed to read the IP.

I asked him a number of questions concerning the possible injury to Mr Summerell; he was of the view that it would take Mr Summerell between 5 - 10 minutes to get dressed.

He indicated that the hand-over with Mr Cahill was rushed, as Mr Cahill seemed to be anxious to get away. He thought that it was about 5-6 but less than 10 minutes between the time he arrived and the time Mr Cahill left.

He indicated that he could have heard the shower from where he was in the house if it was on when he arrived.

He indicated that there was nothing to suggest to him that Mr Summerell was in the shower at around 6:00am, he hastily pointed out however that if this was so then he would have gone into the shower on the last shift.

Mr Lotfizadeh was recalled to give further evidence on 6 March 2001.

Mr Lotfizadeh began his evidence by agreeing that he had been employed in November 1999 as a carer by Capital Health Call and that he had been at [redacted] about ten times up until November 1999.

He agreed thathe had made entries in the books at the house and was shown Exhibits 2 and 7 and agreed the entries were in his handwriting. He was initially shown Exhibit 2. He was then shown the entry in the Communication book Exhibit 7 and agreed that also was in his handwriting. Although he was not certain he thought he may have made both entries after his return from the Hospital. He thought however, the entry in Exhibit 7, which appeared to have been changed in so far as the time was concerned, may have suggested that he had made it closer to 6:00am then to the time he came back from the hospital.

He was shown the IP for the entry of 29 November and having read it, agreed that it probably was written when he came back from the Hospital. He indicated that the House Manager had asked him to write it down and he did so.

Mr Lotfizadeh was asked a number of questions concerning the comment of the timing of hearing Neil first screaming, he had indicated in the IP that he had heard the scream upon his

arrival at the house at 6:00am. He appeared to suggest that this may have been incorrect and that he in fact heard the scream on the first occasion during the hand over.

He described the screaming as being a couple of words rather than just shouting and making noise.

He indicated that he arrived at the house a little bit late and that Mr Cahill was waiting outside for him and that Mr Cahill was anxious to get away.

He accepted that he was familiar with Mr Summerell having worked at the house a number of times, perhaps up to ten, according to the records previously. He had never heard Mr Summerell scream prior to this morning.

He then began to explain about the scream, and indicated that he had told us previously about this, and seemed to say there was only one scream and he moved towards the office door when Mr Cahill indicated to him that everything was fine and that there had been no problem during the night. He went on to say that Mr Cahill indicated that the scream was a behavioural problem.

Mr Lotfizadeh indicated that the hand-over was quick and that he escorted Mr Cahill from the office and then he observed Mr Summerell coming out of his room with his clothes on. He then decided to let Mr Cahill out of the house and then go and investigate Mr Summerell's situation.

It was put to him that Mr Cahill denied that there had been any scream and he was asked to comment upon this, but strictly speaking he was not able to do so, other than to suggest that Mr Cahill did not want to admit that the shower had taken place during his shift.

He seemed to describe in these pages the following sequence of events:

1. He heard the scream, one only, when he and Mr Cahill were in the office doing the hand-over.

2. At the end of the hand over, when he was escorting Mr Cahill from the office to the front door he saw Mr Summerell coming out of his room with his clothes on going to the toilet.

3. He then let Mr Cahill out of the house and locked the front door. He says that during this time both he and Mr Cahill, saw Mr Summerell coming out of his room with his clothes on.

4. When Mr Cahill had left and he had locked the door he saw Mr Summerell going back into his room and closing the door.

He then says that he then went and knocked on the door but there was no answer. He then opened the door and saw Mr Summerell sitting on the edge of the bed. He could not recall what type of clothes Mr Summerell was wearing but did not think it was a sweater. Shortly after saying this he indicated that he thought that Mr Summerell had two or three layers of clothing on his upper body, and the first layer on the outside was knitted, like a jumper.

He did not notice whether the bed was wet.

Mr Lotfizadeh indicated that he attempted to have a conversation with Mr Summerell, and asked how he was, but the only reply that he got was something, which he thought meant "Oh, bastard sore"(T126).

He then said that he thought Mr Summerell had said "Oh back," and then he asked, was there something wrong with his back and Mr Summerell said "No." (T126) He then said that he asked "Can I look", and Mr Summerell again said "No." (Tl26) and he then suggested they go and have breakfast. Mr Summerell then walked to the kitchen to have breakfast; he sat beside the breakfast bar and had his breakfast.

Mr Lotfizadeh indicated that at the end of breakfast he noticed that Mr Summerell had spilt some of his breakfast on his clothes, and he suggested that he might care to change his clothes -this was apparently an attempt to look at his back- but Mr Summerell indicated "No". Mr Summerell then went and sat on the couch in the living room.

He stated that following this conversation he thought he observed part of Mr Summerell's neck.

He says that Mr Summerell then went and sat on a chair in the lounge area.

Mr Lotfizadeh indicated that while he would have seen the back of Mr Sumrnerell's clothes, he could not remember whether they were wet.

Mr Lotfizadeh described how he first came to see Mr Sumrnerell's neck. He described how he was in the breakfast bar area of the kitchen and noticed that Mr Summerell had got some food on his clothes, he discussed with Mr Sumrnerell changing the clothes but Mr Sumrnerell declined, and he believes it was at that time he saw part of his neck.

He was asked if he recalled whether the clothes were wet but he indicated that he could not remember.

Mr Lotfizadeh described Mr Sumrnerell sitting on a chair, and indicated that on one occasion he believed Mr Sumrnerell screamed and said something like "old bastard, sore"(Tl28).

He described the other resident coming out and talking to Mr Sumrnerell and he thought that one of them had tried to respond with a fist or something like that. He then had a discussion with them and the other resident left while Mr Lotfizadeh prepared the breakfast.

He then stated that it was at that time, that he went to make a phone call to the House Manager who he thought was called Jo (it seems that this is probably Jo Davidson). He stated that he got no reply other than an answering machine. He indicated that the reason he was trying to ring that person was to see if he could find out whether there was some problem with Mr Sumrnerell that he was not aware of.

He states that he got the breakfast and then again called the House Manager and again got the answering machine, and then decided to call the other House.

He stated that he then called Desailly House and spoke to somebody there and inquired whether they knew anything about Neil having any particular problems, and he was advised, No, and then asked why, he then said because he screamed a few times and he's saying that it's a sore back and I've seen there is red skin on his neck, back of his neck at the top. He then stated that he recalled the person from Desailly inquiring whether it was sunburn. He then stated that he recalled that person inquiring whether it was a behavioural problem.

He stated that he called back again and indicated that he was concerned about Mr Summerell and was advised to call the On-call Manager or the House Manager. He indicated that he had said that he had called the House Manager but it was an answering machine. He stated the person from Desailly house advised him to call the On-call Manager or ASM and he said he did this but it was also an answering machine. He left a message on that machine.

Mr Lotfizadeh was then taken through the sequence of events and described them as follows;

1. He gave Keith (the other resident) his breakfast and then called Desialley house. In this conversation it was suggested to him that Mr Summerell may have been sunburnt.

2. Following that call he called either the ASM or the DS02 but could not get a reply.

3. He then rang Desailly house again.

4. While he was confused about the sequence of events he then indicated that he finally rang DS02 Jo Davidson and spoke to her.

He indicated that she wasn't happy because he called her in the early morning and indicated . that he shouldn't have called her that he should have called the On-call manager.

He then called the On-call manager.

He thought that both Ms Davidson and the On-call manger had suggested to him that it might be sunburn. He never suggested to anybody that it might be sunburn.

Mr Lotfizadeh indicated that the On-call manager suggested that he should contact Mr Summerell's doctor which he said he did but the doctor was not available, and he then called the On-call manager again.

He was asked the following question: "Did you call anyone else before you called the On-call manager?" Answer: "I don't remember that I did or not but I think that what I know is that finally I could find somebody that I can talk and get direction what I can do about Neil, so I keep calling On call manager. For many times I did that, I know that."(Tl32).

Mr Lotfizadeh described a conversation he had with the On-call manager in which she indicated that if Mr Summerell was in pain then he should give him some Panadol, he then indicated that he thought that before she said that she had said that he ought to take him to the hospital, but explained to her that he couldn't really do that because of the commitments that he had at the house that morning. Following this conversation, he then said that she indicated he should give Mr Summerell some Panadol until the DS02 (Jo Davidson) arrived at the house that morning.

He described how he attempted to gi.ve some Panadine, Panadol not being available, to Mr Summerell who declined to take it. He then says that he rang the On-call manager again to inform her of this situation, and he again discussed with her what he was going to do about the other residents, one of whom he was supposed to pick up from his father's home. He advised that he was instructed by the On-call manager to call them and tell them that they would be late. He stated that he did in fact do this. He advised that when he rang the parents of the resident who he had to pick up they agreed to transport him to the disability house.

Mr Lotfizadeh indicated that following these phone calls he again rang the On-call manager to advise her of what had happened, and had a discussion with her about Mr Summerell not taking the tablet. He indicated that he then went and checked and Mr Summerell had indeed taken the tablet and he was told by the On-call manager to wait the arrival of the DS02.

He indicated that between the last phone call with the On-call manager and the arrival of the other people about 9:00am he tidied up the house and enquired from time to time of Mr Summerell, how he was, but got no reply.

He indicated that before 9:00am somebody from the Insurance Company arrived and he invited her in. Then Mr Woodwell (The father of another resident) came a little after 9am, he believed that Ms Davidson came about 9:30am.

Mr Lotfizadeh indicated that he did not observe anything about Neil's clothing as he was sitting on the chair.

He described the conversation he had with Ms Davidson, which took place after she had had her discussion with the Insurance lady, and said that following the discussion with Ms

Davidson, she went forward and just pulled his jumper and clothes off to see what's wrong with his back. Ms Davidson saw his back and said that she was going to ring his Doctor, she came back and said that they'd better take him to the Hospital. Mr Lotfizadeh then took Mr Summerell to the Hospital. He also indicated that Ms Davidson first asked Mr Summerell could she have a look at his back, and he declined. She then waited a few minutes before she looked at his back by pulling up his jumper and other clothes.

Mr Lotfizadeh then attempted to describe his memory of what occurred when he attended at the Hospital. He was not able to recall whether he had said to anybody at the Hospital that Neil had been burnt in the shower, but thought that could have been possible, he did however seem to be of the view that he would have certainly said that Neil had a bum on his back and that he had pain and peeled skin on his back and neck.

Mr Lotfizadeh waited for a period with Neil, then left to move his vehicle, and when he came back he spoke with somebody else about Neil's back. He indicated that he could not remember what he said to them, because he did not know what had happened to Neil.

He thought he gave the receptionist some details from a book that he had about Neil, but seemed unclear as to what book it was that he had. He did think that it was the IP file he had with him.

He accepted after some confusion that he knew that Neil was going to be admitted to the Hospital and he then returned to [redacted].

He indicated that he returned to [redacted] after lunch.

Mr Lotfizadeh indicated that when he returned to the House after lunch, Ms Davidson was still there, and he explained to her what had happened at the Hospital although he said that he did in fact call her from the Hospital, and she instructed him to clean up the house and in particular the beds. He states that he went to Neil's bedroom to change the sheets and he saw that the sheets were wet. He said that he showed the wet sheets to Ms Davidson.

He was asked about Mr Summerell's pyjamas and he indicated that he had put the pyjamas in the washing machine, and that they weren't wet.

Mr Lotfizadeh indicated that his memory of the pyjamas was that he had found them in the dirty clothes basket used by the residents, and that he had washed them in the morning.

He was asked whether there was any skin on the sheets when he found them wet, and he indicated that he could not remember.

Following his discussion with Ms Davidson a decision was made that Mr Summerell had not urinated in the bed and accordingly the sheets were just hung out on the line to dry.

He was asked some questions about the position of the wetness on the sheets and he was of the view that "it was almost the middle from the bottom to the top." (T143). He was of the view that it was a bigger area than if he had wet the bed as a result of incontinence, but that the sheet wasn't soaking wet, and there was no urine mark.

He was also asked some questions about his memory of the procedure involved in the placing of the pyjamas into the washing machine, while he was not precisely clear, he was of the view that he would have taken them out in effect item by item from the clothes basket and that if they had been wet, he would have felt this in that process.

List of Phone calls from [redacted] House on the 29th November 1999.

Time of call Duration of call To whom call made 6:21:49 42 sec Girlfriend 6:22:47 1 min 36 sec Son 6:32:48 44 sec Desailly House 6:58:00 8 sec Jo Davidson 6:59:06 55 sec Capital Health Call 7:00:34 3 min 47sec Girlfriend 7:12:34 1 min 34 sec Desailly House 7:14:26 15 sec Gail Rose 7:15:00 41 sec ASM 7:46:00 2 min 37 sec Jo Davidson 7:49:58 4 min 16 sec Central Office Disability Services 7:57:13 1 min 37 sec Woodwell 7:58:58 11 sec Woodwell 7:59:24 16 sec Dr Armstrong 8:00:12 30 sec After hours locum 8:01:22 2 min 23 sec Central office Disability Services 9:23:22 3 min 16 sec Dr Armstrong 9:46 4 min 12 sec ASM 11:08: 43 sec ASM 12:25 pm 34 sec ASM 4:19pm 6 sec ASM 6:05pm 24 sec Jo Davidson

Mr Refshauge took Mr Lotfizadeh through the phone calls and put to him Mr Daley's version of the phone call made to Desailly House at about 6:30am (6:32:48). Mr Lotfizadeh did not seem to agree with Mr Daley's recollection of that first phone call. In his view the only reason he had to call Desailly House was relating to Neil. He continued to be quite firm about his denial that he had rung other than to discuss Neil.

Mr Lotfizadeh indicated that his phone call to Capital Health Call was to answer a message from them in which they advised they had attempted to contact him the night before to work in the role that Julian Cahill had taken.

Mr Refshauge then asked him some questions about his memory of the second phone call with Mr Daley. It would perhaps be fair to say that he was somewhat confused about the contents of the two phone calls with Mr Daley.

Mr Lotfizadeh denied that he had changed Mr Summerell's clothes.

Mr Refshauge put a number of questions to Mr Lotfizadeh based upon his record of interview of January 2000 and suggested to him that some of the statements that he made in that record of interview were inconsistent with the evidence he had given on 6 March 2001. It is difficult to determine what position Mr Lotfizadeh was taking in relation to these particular questions, other than to accept that if the phone record or the interview record indicated he was wrong in his current evidence, then he seemed to accept that situation.

It was suggested to Mr Lotfizadeh that Ms Davidson had said previously that when she arrived at the House that the bed linen was already on the line. He insisted that what he had said about the timing of taking the sheets off the bed, namely that they were done after he came back from the hospital was correct.

Some questions were asked concerning the process of the washing of the pyjamas and the other linen, Mr Lotfizadeh indicated that he was now not absolutely sure whether he had washed the pyjamas or had merely taken them into the laundry. He also seemed to indicate that he was not aware of a rule, if such a rule existed, that required Mr Summerell's bed clothes and pyjamas to be washed every morning. It appears that Mr Lotfizadeh did not seem to be of the view that it was part of his responsibilities to actually wash the linen.

Mr Lotfizadeh was then asked some questions about how he knew what he had to do on that morning when he came to work. He seemed to suggest that he knew some of it because he had previously worked on a limited number of occasions in the morning and from that experience he knew that he had to get them breakfast. He also seems to be saying that he knew he had to do other things because instructions were written on a whiteboard. He also appears to be saying that he knew about certain basic responsibilities because they were part of his job.

It was pointed out to him that there was an instruction "read diary and daily house information." He indicates that he did look at the diary but indicated that there was not anything relevant in it and he thought he had looked at the daily house information. He again was asked about not having read the individual plan and he indicated that he didn't remember that he had done that.

He indicated that he had never washed the linen in the house before and he did not remember whether Neil Summerell was incontinent.

Mr Lotfizadeh was asked a number of questions concerning the clothing that Mr Summerell wore to the hospital, and he stated that as far as he was aware, he went to the hospital in the same clothing he had been wearing all morning. He did not recall whether or not Jo may have removed something, but he couldn't really remember the clothes. He could not remember whether he had noticed the clothes were wet when he took him to the Hospital.

Mr Lotfizadeh denied that Mr Summerell may have had a shower while he was talking to his girlfriend at about 7:OOam.

He was asked a number of questions concerning the chair that he said that Mr Summerell was sitting in, and he ultimately marked Exhibit 55 with a cross indicating a two-seater couch near the sliding door. It was Mr Lotfizadeh's position that Mr Summerell had been sitting in the couch at all times and not laying down asleep.

Mr Bayliss began to cross-examine Mr Lotfizadeh, in particular about his purported qualifications. The end result of Mr Bayliss' investigations were that Mr Lotfizadeh when applying for a position with ACT Community Care had indicated that he had a number of

nominated qualifications, which he did not in fact hold. He ultimately gave an explanation concerning that on the basis that he did not have a job and was desperate to obtain a job. That he had a lot of experience from his former place of residence in Iran and that he in effect exaggerated his qualifications.

Mr Dennis Patrick Daley: Mr Daley was called by Mr Crabb on behalf of Capital Health Care, and indicated that he was a health care worker employed by that organisation and had been so employed by that organisation for almost 2 years. He indicated that he had a level 3 certificate in disability studies, a senior first aid certificate and that he had done various other courses. He indicated that he had commenced with Capital Health Call and undertaken an induction course of two weeks.

He outlined briefly the content of that induction course.

He indicated that he had the sleepover shift at Desailly House, which was diagonally adjacent to [redacted].

Mr Daley indicated that during his shift he received two phone calls from Mr Lotfizadeh who was known to him. The first call was at approximately 6:30am.

He indicated that the first phone call from Mr Lotfizadeh was an inquiry about general routine of client's movements, programs etc.

He thought the second phone call came just before 7:00am, and this specifically related to an inquiry concerning a client who had been burnt or sunburnt.

His recollection was that Mr Lotfizadeh had first mentioned sunburn.

He indicates that he advised Mr Lotfizadeh to follow procedures and contact the On-call manager or the house manager and if the injury was bad to take him to the hospital.

He states that he thought that Mr Lotfizadeh sounded a little distressed in the second call, but hadn't in the first call.

He did not recall Mr Lotfizadeh indicating during either of the phone calls that the client that he knew to be Neil Summerell had screamed, he could only recall him being told that the client had been burnt Mr Daley stated that it was part of his training with Capital Health Call that he was to read the individual plan.

Mr Daley was employed by Capital Health Call and worked principally at Desailly House although he had done some shifts at the [redacted]. He had some contact with Allan Lotfizadeh.

Ms Joanna Louise Davidson: Ms Davidson is a DS02 and had been such for approximately 12 months, prior to that had been an acting DS02. She had worked in the Disability Services sector for nearly 3 Y2 years.

Ms Davidson stated that prior to her employment with Disability Services she had worked with Capital Health Call, which at that stage was called Michelle's, she had some training from that organisation. When she joined Disability Services she had further training which she thought was an induction course of about. a month duration. She had done further courses from time to time since then.

In November 1999 she was the DS02 responsible for [redacted] and also Desailly House.

She thought she had taken over as the DS02 in about September.

Ms Davidson indicates that she arrived at [redacted] at about 9am on the morning in November when Mr Summerell was injured. She had come to the House to meet some other people, in relation to an insurance claim.

She indicated that she had received a telephone call on her. mobile at about 7:30am that morning, from Mr Lotfizadeh.

She stated that the gist of the conversation she had with Mr Lotfizadeh was as follows "He'd rung to say that Neil had been screaming and that he may have had sunburn."(T225). Ms Davidson indicated that she advised Mr Lotfizadeh to call the On-call manager.

She indicated that during that phone call she did not hear Neil in the background.

She indicated that when she arrived at the house the insurance assessor was already there, and that the Woodwell's arrived about the same time. She observed that Neil was asleep on the couch.

Ms Davidson indicated that when she arrived a lot of people were talking, but that not long after she arrived she did ask Allan whether he had spoken to the On-call manager. She stated "He seemed to be a bit flustered. And I spoke to him in the office--- the sleep over room." ...

"He said that he had spoken to the On-call manager and that he had to ring the doctor and he had rung the doctor and the- there was no one there until9 o'clock."(T227).

She indicated that she thought she spoke to Neil before she spoke to Allan. She seemed to indicate that she thought everything was fine because she had directed Allan to ring the On call manager just after 7:30am. She thought she. may have had a brief conversation with Allan before she spoke to Neil, but she could no_t recall the terms of that conversation. She then went to the position where Neil was asleep on the couch and woke him up because he should have been at work or at Sharing Places. She thought it was odd for him to be at home.

Ms Davison then indicated that she spoke loudly to Neil because of his hearing difficulty, he sat up and she offered him a cup of tea. When she went to make that he lay back down again.

She then says "When I came back, because he was lying on the couch with his feet up, that his shirt and jumper had rode up over his hips and it was like a window about that - that much I could actually see ... about 2 or 3cm... an area of skin... it was red and it was like a - someone had placed a tissue and wet it with a water sprayer. That's what it- in- that I felt that I could see. It was wrinkled and red and whitish."(T229).

She then indicated that she took Allan into the office and spoke to him. Neil was not showing any signs of distress. She thought she observed a dampness on the back of his jumper. He had

been lying on his side on the couch. She accepted that this may have been pressing up against the couch, as he had been facing outwards.

It was indicated to Ms Davidson that the medical records showed that a phone call had been made to Doctor Armstrong's office at about 9:23am, while she was of the view that she thought she had rung earlier, she ultimately·accepted that this would have been correct.

She described her conversation with the Doctor's receptionist, which resulted in her being advised to take Mr Summerell straight to hospital. She got the keys for the van and put Neil in the van. It appears that her purpose for ringing the Doctor was to see whether the Doctor might in fact ring the Hospital to enable some priority treatment.

She indicated that Neil "got up and when he started to walk, he started to scream out, he said words and he did scream". This indicated to her "that he was in pain, that he was sore. "(T231).

She indicates that Allan drove him to the hospital and that he took his IP folder with him.

She indicated that Allan indicated that he thought the burn was sunburn, but she accepted that it could not be sunburn. Part of the reason for this was she had worked the 24 hour shift on the weekend and she knew that he had not been out in the sun.

She indicated that she had advised Allan of this fact from the telephone conversation in the morning at 7:30am.

Ms Davidson indicated that Allan rang her a couple of times from the hospital inquiring about particular things including something of Neil's medical background which she indicated would be found in the IP folder.

She indicated that Allan returned sometime before lunch about llam or !1:30am, he started to tell her what had happened at the hospital, but she indicated to him that he should write a report about the incident.

Ms Davidson indicated that she was aware of Neil's incontinence, and that the practice was to wash his bedclothes and pyjamas early in the morning. She was then asked the following question; "Can you recall whether that would've been done that day?" Answer; "Yes, it had been." Question; "how do you know that?" Answer; "Because all the sheets and linen, bedclothes were on the washing line." Question; "When did you notice that?" Answer; "It was just a common thing, that it would always be there and if there wasn't washing on the line it would be noticed more than not, but I'd spoken to my ASM and she asked me to check the line."(T233).

She indicated that Gail Rose was her ASM and that she had spoken to her several times during that morning. She recalled specifically that one of the conversations she had had with Gail was about the washing, and that this had occurred before Allan returned from the hospital. She thought she had gone and checked, because she believed it was a direction from her ASM to check the washing.

Ms Davidson indicated that when Allan came back from the hospital there was a discussion concerning the injury and in particular she remembered asking whether he had sunburn on his bum, and Allan indicated yes he did on the left side. She indicated that it was quite frustrating with Allan going on about sunburn.

She indicated that when Allan came back from the hospital she had a discussion with him about whether there were any vacancies and if there were could he have a line? (This term apparently represents a monthly roster period). She indicated that they didn't have any vacancies.

She indicated that she could not recall any conversation with Allan to suggest that Neil was screaming at the time of the hand over.

Following this answer she was directed to her record of interview with the Police in which she had said that Allan had told her that when he came on, Neil was screaming in his room at 6 o'clock. She did not think that the conversation had occurred in the 7:30am phone call otherwise she thought she would have probably gone over to the house. She indicated that the

version that she gave to Police indicated that the screaming occurred during the hand over.

She subsequently thought he had said to her on another occasion that it occurred when he was letting the guy out.

She again indicated that she thought there was a difference in the stories that Allan was giving about when the screaming started. She also indicated that she seemed to be reluctant to question him too much as she thought he might become unnecessarily confused. Having made those comments she was of the view that there was probably two conversations that she had with him concerning the screaming. She thought that if that was correct then one of the conversations would have been before she rang the Doctor and the second after Allan came back from the hospital.

She further indicated that she asked Neil to change his clothes during the 9-9:30am period that she was present at the house, but he refused.

She indicated that the sleep over always ended at 6:00am at [redacted].

She indicated that she spoke to Mr Summerell at the hospital and that he indicated to her that he had a shower that morning.

It was put to her the comment that Mr Summerell had allegedly made to the nurse at the hospital concerning his waiting for a shower but nobody coming, and she indicated that on Mondays he did not have to get up early as he didn't go to work, but went instead to Sharing Places. She indicated that if he didn't have to go to work it wasn't necessary for him to be woken up early. This information was contained in the IP folder and also on the whiteboard that indicated his daily schedule.

She indicated that the other resident in the house had to be picked up from his parent's home and taken to work and that this would have affected the timing of the departure from the premises. It was not possible to leave Mr Summerell alone in the house.

She indicated that Mr Summerell normally got up at 6am and he may go to the shower and turn it on.

He was able to dress and undress himself and have a shower by himself.

She indicated that it was normal for persons not to be present in the bathroom while he had a shower, but they would stay either in the comer of the bathroom or outside in the ajar door.

She also indicated that Mr Summerell did not spend very long in the shower. He may have spent some time in the bathroom, but generally very little time in the shower. She indicated further, that you could hear the shower throughout the house, but she didn't think you could hear it outside the house.

She indicated that she did not believe that Mr Summerell ever made a cup of tea or coffee for himself.

Ms Davidson was asked some questions by Mr Crabb and accepted his description of Mr Summerell as being "a programmed client."(T243). By this Mr Crabb indicated and Ms Davidson accepted that Mr Summerell had a set routine. This included him having a shower in the evening and in the morning.

He was described as being a person who liked his routine and he knew what his routine was.

Ms Davidson indicated that his routine in the morning was that he would have his shower and then come out and have breakfast, go and sit on the couch, then lie down and go to sleep.

I raised with Ms Davidson the potential problem of the hand over which might result in residents not being supervised at all during the physical hand over time.. She accepted that it could be a problem, but she herself had not experienced it, although she had conducted hand overs other than in the office.

Following a number of questions from Mr Refshauge she indicated that it might be possible to hear the shower if you were standing on the porch outside the house at about 6am.

Mr Michael Patrick Devine: Mr Devine indicated that he was a DS01 and had been with the disability program since July

1998. Prior to the he had worked for two years with Michelle's Nursing Service. This organisation is now Capital Health Call.

He indicated that he had no formal qualifications but had had a four week induction course and some other training.

He indicates that he had worked with Neil Summerell from about January 1999 to November 1999.

Mr Devine indicated that he worked on a 24 hour shift basis, which seems to have involved commencing work at 2:00pm and continuing until lO:OOpm, then doing the sleep-over from lO:OOpm until 6:00am, then working from 6:00am until 2:00pm. He would then do a 2:00pm until lO:OOpm, do a sleep-over then go home and have to come back to work at 2:00pm that afternoon.

He indicated that he did between 4 and 5 sleep overs a fortnight, and the sleep overs finished Monday to Friday at 6:00am and on Saturday and Sunday at 7:00am.

He explained that his procedure during his contact with Mr Summerell was to go and wake him up at 6:00am in the morning, by knocking on his door and telling him to get up and to go and have a shower before they had breakfast. He would get up, undress himself, put his robe on, go into the shower and have a shower. During this time, Mr Devine indicated that he was in the general area, more often than not making lunches or breakfast.

He indicated that Neil always took a shower by himself and Mr Devine from time to time would intervene to adjust the temperature of the water. He did not leave the door open and if Neil closed the door behind him he accepted that situation.

Mr Devine indicated that from time to time he would knock on the door and go and check that he was all right.

He indicated that at times Neil "used to tum the taps on full blast and then get under."(T267). This sound could be heard and he would then go in and turn the water down.

He indicated that he thought Neil had a high tolerance to pain.

He also indicated that he did not recall any occasion when he had tested the temperature and found it very hot.

Mr Devine indicated that there were times when he had tested the temperature and found the water to be too hot, and had added cold water to it.

He was asked questions concerning his experience in relation to Neil getting out of bed on weekdays earlier than 6:00am. Mr Devine indicated that his only experience was that he may occasionally have got up to go to the toilet. But never to get up and have a shower without Mr Devine telling him he had to get up. Mr Devine seemed to be satisfied that his practice of knocking on the door and telling Mr Summerell to get up was something that Mr Summerell was used to especially with Mr Devine. He accepted as I understand his evidence, that Mr Summerell was somewhat set in his ways.

I then asked him a number of questions as to whether it would have been in fact possible that Mr Summerell had got up at about 6:00am when the casuals were on duty and that they had not come to wake him up the way Mr Devine did.

I asked him the following question; "Is that a comment that perhaps suggests that because you had a particular habit and somebody else didn't that he may indeed have waited and then got up and gone and had his shower?" Answer; "He may have done, yes." (T269).

I again put the question to him about the possibility of Mr Summerell getting up to go and have his shower and he indicated that maybe it was possible, it would not surprise him if it had occurred.

Mr Devine was asked the following question by Ms Cronan "But in your experience you've never known Neil to get up before 6 o'clock and have a shower?"

Answer; "Not on my shifts, no. They're like- most of the clients they knew- if they knew staff who were there, there was no problems. But sometimes I had casuals who'd come in and they're inclined to react against the casuals too. That's when you're doing a change over shift and have to sit down and explain to the clients what was going on and why it was happening too. "(T270).

He gave a number of examples of the pain tolerance level of Mr Summerell including a situation where Mr Summerell broke his collarbone, and it was a few days before anyone recognised that there was anything wrong with his collarbone.

He indicated that there may have been times when he was on duty when Neil did in fact get up and go and have a shower.

Mr Devine indicated that he did not know whether Mr Summerell had a capacity to tell the difference between a weekday and a weekend.

I asked him whether in his view Mr Summerell had a capacity to make a comment such as the nurse indicated he had made to her of "I waited and waited for my shower but nobody came so I did it myself."(T279). He was of the view that he had never heard him talk like that. He accepted that he had a capacity to do certain things and described how Neil could sit down and clap his hands and sing happy birthday and things like that, "but I never knew him to come out with a sentence like we're doing here"(T279).

I asked him the following question "So he may have said something but it's not likely that he would have said that?" Answer; "He wouldn't have verbalised and put those words together like that, no"(T280).

Comment upon the Evidence relating to 28/29 November 1999.

Mr Cahill was contacted late in the evening of 28 November and was requested to perform the sleepover shift following the failure of the previously organised relief to attend at [redacted]. Mr Summerell was already. in bed asleep when Mr Cahill commenced his shift probably around about 11pm on 28 November. Mr Cahill took over from Ms Page.

Mr Cahill had previous experience with Mr Summerell and, based upon that fact and the fact that the other resident was awake upon his arrival at [redacted], he made no attempt to read any of the materials available at [redacted] in relation to the residents.

He retired to bed a bit after 12.00am on 29 November and apart from one brief circumstance involving the other resident he did not move from his bed until he arose early in the morning.

He was not aware of any incidents involving Mr Summerell during the shift.

He handed over to Mr Lotfizadeh and denies empathically that anything occurred while he and Mr Lotfizadeh were together in the premises.

Mr Cahill's evidence raises a serious issue concerning the role of carers in a sleepover situation and suggests a need for some form of alarm to be installed to ensure that if any of the residents do get up during the night for any reason then the sleepover carer would automatically be roused. A further issue arises from the failure by Mr Cahill to take any notice at all of the various forms of information available at the residences. It is also unclear from Mr Cahill's evidence as to what instructions and training he had received from his employer, Capital Health Call, in relation to his conduct of his responsibilities particularly in relation to reading available materials. If his instructions were to read available materials it is clear that he did not in the circumstances have any intention to carry out those instructions and it would be necessary to ensure that some process is put in place which requires a casual carer to become familiar with the appropriate information available within the residence.

I am not able to form a view as to the correctness of Mr Cahill's recollection in relation to the handover period with Mr Lotfizadeh but as I have indicated I am prepared to accept his version against that of Mr Lotfizadeh.

Mr Lotfizadeh was a casual employed by Capital Health Call and had been employed by that organisation for some four months prior to November 1999. There was a substantial dispute as to his qualifications and he initially described himself as having a Diploma in Disabilities, which as I understand it, he had obtained in Iran but that his principle expertise was based upon practical experience gained during a number of years in which he had been undertaking a Nursing Degree course. As at November 1999 he had not completed that degree course.

He denied that he had ever received any training from Capital Health Call and thought he had done one night shift as a sleepover and one day shift at [redacted] before 29 November. It was in due course pointed out to him that the records of Capital Health Call showed that he had attended at [redacted] approximately ten times prior to November 1999. It was also indicated that he had indeed attended an induction course in August 1999 conducted by Capital Health Call.

Mr Lotfizadeh indicated in his evidence that Neil had been observed by himself and Mr Cahill coming out of his bedroom at a time when Mr Cahill was being escorted from the house by Mr Lotfizadeh. He had earlier indicated that he had heard a scream from Neil's room at a point prior to him observing Neil coming from his room. He subsequently states that having observed Neil come from his room and return to his room that he had gone to Neil's room to enquire whether he was all right and he appears to indicate that Neil stated something to him that caused Mr Lotfizadeh to form a view that he may have had a sore back. Mr Lotfizadeh indicates that Mr Summerell refused him permission to look at his back.

There is very substantial confusion on the part of Mr Lotfizadeh as to what occurred between his arrival at the residence and his departure for the Hospital. There is clear evidence from other sources of a number of telephone calls made by him in an attempt, it would appear, to obtain some assistance or guidance as to what he ought do in relation to the issue that had arisen concerning Mr Summerell. He became aware at some point in time of an apparent injury to the skin ofMr Summerell's back.

There is a substantial dispute as to whether Mr Lotfizadeh had washed the bedding and clothing of Mr Summerell prior to his departure to the Hospital.

There is also dispute between the oral evidence given by Mr Lotfizadeh and certain comments made by him in statements provided to investigators.

Mr Lotfizadeh was recalled to give further evidence and he accepted at this time that he was now aware that he had been at [redacted] about ten times prior to 29 November 1999 and also adjusted his memory of the time at which he first heard Mr Summerell screaming. His initial evidence had been at his arrival at the house but he thought this may have been incorrect and that he did not in fact hear the scream until during the handover.

He described ultimately the sequence of events as he recalled them from the time of his anival until the time he went to Mr Summerell's door. He gave conflicting evidence as to his memory of what Mr Summerell was wearing at the time he observed him sitting on the edge of the bed. He did not notice whether the bed was wet.

He repeated his earlier evidence concerning his conversation with Mr Summerell and again indicated that Mr Summerell refused consent to allow Mr Lotfizadeh to inspect his back.

Mr Lotfizadeh had difficulty recalling what he had said to the Nursing staff or Doctors at the Hospital in relation to Mr Summerell or his injuries, but the evidence of the two nurses with whom he had contact at the hospital is that he told both of them that Mr Summerell had been burnt in the shower.

Mr Lotfizadeh's memory in relation to the washing of sheets and pyjamas was again revisited and he indicated on this occasion that the sheets were still on the bed when he returned from the Hospital and that he and Ms Davidson observed that they were wet. This is denied by Ms Davidson. Additionally he recalled the pyjamas being in the dirty clothesbasket when he arrived at work and that he had washed them that morning. He was, on both occasions of giving evidence, very vague and imprecise in relation to his memory of washing anything on that particular day.

Mr Lotfizadeh was taken to the various phone calls made during the day from [redacted] and disputed the evidence of Mr Daley as to the contents of the first phone call at 6:32am.

A number of significant is ues arise in relation to the credit of Mr Lotfizadeh. He accepts that he falsely claimed qualifications in order to obtain his employment. He accepts that he did not read any of the material available in the residence at the time of his commencing his shift.

He denied that he had ever participated in a course of induction organised by Capital Health Call about which there is clear evidence to the contrary, he initially indicated that he had very limited exposure to working at [redacted] whereas, in fact, over the few months that he had been employed by Capital Health Call he had been engaged at [redacted] on ten separate occasions. He is in dispute with Ms Davidson as to the washing of the sheets and the pyjamas. He is in dispute with Mr Cahill as to what occurred at the time of the handover. He

is in dispute with Mr Daley as to the contents of the telephone calls to Desailly House at 6:32am and 7:12am.

I am not able in the circumstances to accept the evidence of Mr Lotfizadeh as to what occurred on the morning of 29 November 1999.

Admission to The Canberra Hospital: Ms Isobel Maria Harvey: Ms Harvey was a nurse at the Canberra Hospital and had been a nurse since 1972. She indicated that she had some specialty experience in the matter of bums treatment.

She set out her qualifications, as well as her experience.

She indicated that on the morning of the 29th November 2001 she was working in the emergency department, and was introduced to Mr Summerell by the Triage Nurse.

Mr Summerell was fully dressed when first seen.

Ms Harvey made the following comment "I thought it was odd that he be fully dressed and have such extensive bums, as I discovered as I undressed him. I remember Chris saying to me, he's fully dressed and look at all this seepage coming out on his shirt. So we both took him inside and Chris helped me undress him, and I just thought it was odd that someone would bother to dress a patient who'd sustained such significant bums, and I remember asking the carer at the time why he didn't call an ambulance" (T285).

Ms Harvey indicated that she had a discussion with the carer who was present at the time and asked how the incident happened and her evidence was "He said he thought it was in the shower after him when it occurred. He said he thought it was the night before, "(T286) She indicates that the carer was not able to provide much in the way of useful history, particularly in relation to Mr Summerell and she formed the view that perhaps it was his first shift dealing with Mr Summerell.

She indicated that she could not see any burnt skin until they undressed him.

Questions were asked concerning his response by way of pain and she indicated that he made a grimace when she took his shirt off his arm, and that she arranged to give him intravenous morphine. She was asked whether the expressions of pain were consistent with the level of bum and she indicated that in her opinion they weren't. She thought that a grown man with those sought of bums would have been screaming and begging out for pain relief. Mr Summerell's response was extremely subdued.

She described the extent of the bums which she found when she removed his clothing. She indicates that "it was all of his back behind his shoulder, on the back of his neck, down the left side of his trunk, and the left buttock, and the upper arm - left upper arm."(T287). She indicated that the bum went up into his hairline on his neck, but that it was strictly not visible, because of his clothing but the collar of his shirt was quite wet.

She described the bums as oozing a great deal and that there were blisters of various sizes present on the skin. There were sheets of loose skin. She described the bums as "a partial thickness bum - superficial partial thickness." She was then asked the following question; "Now were you able to form a view about how recently those bums had been inflicted?" Answer; "Well my instincts and my experience told me that I thought they'd occurred that morning." (T288).

She then continued to make the following comment "But when I spoke to the carer he said no, he had a shower last night. And I said these bums happened last night, and he said yes.

But it just didn't fit, with that amount of- and that's when I said to him, well his sheets would have been sopping wet this morning, didn't anybody notice that, you know, sheets of dead skin on his pyjamas or his pillow or what happened, and he said 'Oh no, the sheets have been washed'. And I said that somebody would have noticed the sheets of dead skin, and he said after, why did you wash his sheets, and he says Neil often wets the bed and that's we thought it was or that's what I thought it was, and so we just, I just washed the sheets."(T288).

She continued to indicate that the amount of ooze which would have come from his burns would have caused him to be stuck to the sheets or to his pyjamas, and this ought to have been obvious to anyone. She indicated further that if his pyjamas had been removed and he had

been burnt the night before, then skin would have been pulled off when the pyjamas had been removed. She accepted that this would have been a painful process.

She indicated the treatment that she gave him after his arrival, she then left him in the care of another nurse as she had to go about other duties and she was away for about an hour. When she came back she consulted with the person described as the plastics registrar and decisions were made concerning further treatment. This involved amongst other things putting dressings on, which took her over an hour.

She indicated that following the dressings she arranged for an intravenous fluids as she did not believe that he would otherwise be able to catch up with his fluid loss and then arranged for him to be transferred to Ward 1OA.

Ms Harvey indicated that following the conclusion of the various procedures a discussion took place between her and the registrar, and that the registrar indicated that it would be appropriate to send him home. Ms Harvey indicated that she disagreed with that and that the registrar accepted her view and that Mr Summerell was admitted.

She was asked whether Mr Summerell's personal situation, together with his injuries would have warranted his admission to intensive care? She indicated that his situation was not sufficiently serious and the nature of his injuries were not such, as would require admission to intensive care.

She indicated that she was aware of the fact that gastric erosion may occur in bum cases but she stated; "But I've never in all my years had anyone who has manifested this complication."(T290).

Ms Harvey indicated that many years ago in the intensive care unit at Royal Canberra they had given treatment for gastric erosion but she wouldn't like to comment on the situation now.

She indicated that during her discussions with the carer (who we assume is Mr Lotfizadeh) no mention was ever made of sunburn. She indicates that as soon as she started asking questions she was told that it had occurred in the shower.

She indicated that the bums were not consistent with sunburn, but they were consistent with scalding.

Following her long answer a number of other questions were asked concerning the possible scenario as to how he managed to sustain the bums in the shower and some use was made of a photograph of a person in the shower, but her final position was that she still had difficulty reconciling the bums with the shower. This seems to have been caused in particular by the absence of any bums to his feet.

She was again asked some questions concerning the timing of the bum. It was put to her that if he had been burnt between 6:30am and 7:00am and seen by her at approximately lO:OOam, and that he had only one set of clothing on in that time, as to whether this was consistent with her thoughts of the timing, she stated that "no, that's inconsistent. If the burn happened at 7 and I saw him at 10, I could have been able to ring his shirt out, and it wasn't that damp."(T296).

She indicated that the state of his clothing suggested to her that the bum had occurred about an hour before she saw Mr Summerell at lO:OOam.

She further indicated that during all of the time that she dealt with Mr Summerell he did not say anything to her about how he was injured. Indeed she seemed to be of the view that there was no conversation at all.

Ms Harvey indicated that the presentation of the bums as seen by her at about lO:OOam "everything was wet and moist and slippery."(T298). This seemed to indicate to her that the bum was recent. If the bum had have occurred the night before she would have expected to see quite a different presentation involving areas which had dried.

She indicated that in her view the bunis were all over fairly even.

She then indicated that she saw between 300 - 400 bum cases a year and that the majority of these were as a result of hot water bums.

I put a question to her concerning the timing based upon what we then knew, namely that at about 6:30am Mr Lotfizadeh had rung Mr Daley and did not indicate that there was any problem with Mr Summerell, but that at 7:12am, he did indicate to Mr Daley that there was a problem. I then put to her that if he was burnt between 6:30am and 7:15am and that there was no change of clothes at all would that still cause her concern as to the wetness of the clothes at lOam. She answered "Yes. They weren't consistent with clothing that had been onfor 2 or 3 hours, following a bum like that."(T305).

I asked her a number of questions concerning the timing of the bum and she was quite firm of the view that he could not have been burnt around 7:00am. Her final position was that she believed that the presentation at lOam was consistent with him having being burnt about 1 hour before that time.

She indicated that there was no way he could have been scalded through the clothes, he was wearing at the hospital.

She indicated that it would not have needed a substantial quantity of water provided it was the right temperature to cause the bums she saw on his body, for example she indicated that a bucket of water thrown directly onto his back could have caused the same bums, but they would not have been caused by a cup of water.

Mr Christopher John Stuart Riddell: Mr Riddell was a Registered Nurse and was on duty at the Canberra Hospital on 29 November 1999 in the Emergency Department. He was the Triage Nurse at that time.

He indicated that he knew Mr Summerell as he had previous dealings with him. He recalls a carer coming in with Mr Summerell, who he described as a male with dark hair and a foreign accent.

He indicated that the carer presented with Neil stating that he had being burnt in the shower.

He denied that there was any discussion about sunburn.

He indicated that he did not believe there was any sense of urgency in the presentation of the carer.

He described a short discussion with the carer and then the completion of the necessary details concerning Mr Summerell, and then he had gone off to do other work and that when he returned he observed "I saw the back of Neil's shirt which was absolutely soaked."(TlOI). He formed the view that the bums were more than a slight scald, and he then lifted Neil's shirt and when he saw the extent of burns he took him straight to Ms Harvey.

He indicated that he could not recall whether Neil had a jumper on but he did recall that he saw the wet shirt.

He did not recall a jumper at any time, but thought that there probably wasn't ajumper as he didn't think he would have noticed the shirt if there had been a jumper.

He indicated that he had no difficulty in getting Neil to lift his shirt for him to inspect his back. He further indicated that he did not feel that Neil remembered him although he remembered Neil. He accepted in that environment that he was probably a complete stranger to Neil.

Ms Judith Elizabeth McRae: Ms McRae indicated that she was a Registered Nurse and had been so for some 25 years and at relevant times was working in ward lOA, and that she had dealings with Mr Summerell in that ward.

She described her contact with him particularly in relation to conversations that she had with him. She states that on one occasion she inquired "gee, what happened mate?" and states that he replied "he wanted to have a shower, he called out, and he waited and waited and no one came." It was suggested to her that in her statement she had also said that he had said "so I did it myself."(T105). She agreed that he had said that.

She indicated that he didn't talk a lot but when he did it was very quick, which she indicated subsequently meant it was in short sentences.

Not withstanding this, she still indicated that he had said what she stated but it had been said very quickly.

She also indicated that she accepted that her impression was that he had a high tolerance for pain.

She was asked some questions by Ms McGregor and accepted that Mr Summerell represented a particular problem as a patient and needed special attention. She stated that in her view he received that special attention as she had a low patient load and could spend more time with him and she made sure that he had regular pain relief, and that she spent a lot of time in the room with him as a one - on - one patient.

She indicated that while she had stated it was one- on- one she had another patient who didn't require as much nursing hours. She also indicated that bums victims in general, require more time and care. She indicated that he was in a single room that was visible from the nurse's station.

Ms McRae indicated that in her view he would have been under observation at all times.

Ms McRae gave some evidence concerning her memory of the conversation she had related and stated that her memory had been triggered by her reading in the Canberra Times about the absence of hot water controls in the house. She says that as a result of this she made a note concerning the conversation that she had had and she thought this note was made in December 1999. She did not have that note any longer as she had moved house.

I suggested to her that other evidence indicated that Mr Summerell did not have a capacity to say what it was that she remembered him saying. She continued to adhere to the view that that was what he said and her words were as accurate as she could possibly get in relation to her memory of his comments.

She denied that she had in any way prompted his comment. She indicated that she got the impression that he had regarded himself as being some how bad by doing what he had done.

During her evidence she stated that the comment that he made concerning him waiting for his shower was made while he was in the shower at the Hospital, and Ms McRae was removing his dressing this she said took a considerable period of time and allowed him to say things that

he perhaps would not otherwise have said. She also indicated that on another occasion he had said to her "I'm scared of those" referring to injections. She was of the view that his conversation did not only consist of yes and no and nods and shakes, but that he did use words.

Dr Margaret Anne Gillies: Dr Gillies a physician who specialised in gastroenterology. Dr Gillies outlined in the transcript the various materials she had received from the DPP to consider and, was asked her opinion in relation to the care that he had received and she stated "that his care was entirely appropriate."(T186). She went onto say as follows; "He was admitted to casualty and his bums were attended to. I should point out I'm a physician not a plastic surgeon, but I'd entirely agree with the way he was managed and the concerns expressed that he may well have become dehydrated and his renal function would be at risk because he'd not been admitted properly to hospital after the initial event. But nevertheless the treatment that was given to him at the hospital seemed to me to be entirely appropriate."(Tl86).

Dr Gillies indicated that in particular she thought the procedures followed by Dr Tran were quite appropriate and correct.

She interpreted Dr Tran's notes for the record and was asked some further questions subsequently in relation to other possible causes of death, but she appeared to be content to accept Professor Herdson's report, she concluded this period of evidence by saying as follows,• "So I find it very difficult to have any criticism of his management."(T190).

She was asked to comment upon the appropriateness of some medication to prevent the development of ulceration and her position seemed to be that protocols existed for their administration to persons in intensive care, but not otherwise.

Following some questions by Ms McGregor she indicated that if there had been one erosion and it had been discovered prior to his death it may have been capable of control, but if there were multiple erosions it was almost impossible to control.

Dr Peter John Kennedy:

Dr Kennedy was the head of the burns unit at Concord Hospital and he had been forwarded a number of statements in relation to the death of Mr Summerell. He provided a statement, which is Exhibit 62.

He indicated that there is a relationship between dehydration and the development of Curling's ulcers or gastric erosion. He indicated that Curling's ulcers were a generic term which covered the field.

He was asked "Now, do I understand the position to be, as you've now described it, that if a person is severely burned and is dehydrated, then that would precipitate, or increase the chance that they would suffer from Curling's ulcers or gastric erosions?" - Answer "Absolutely correct, yes."(T51).

He accepted that any delay in bringing the patient for treatment would increase the possibility of the ulcers developing.

Mr Refshauge put a number of questions to Dr Kennedy concerning alternative procedures which may have influenced the development of the ulcers and the end bleeding. He indicated ultimately, however that he thought eating was probably the most important issue, that is to say, "normal feeding is regarded as the best method of preventing these from occurring."(T6). He indicates that he understood from the notes provided from the Hospital that Mr Summerell was in fact eating while in Hospital.

He was asked some questions by Ms McGregor concerning dehydration. He indicated that his review of the notes indicated that a renal physician had been brought in to look at Mr Summerell and that he had been re-hydrated and that his renal function had returned to normal.

Ms McGregor asked him the following question; "So even though the dehydration was resolved, the gastric erosion process had probably already commenced?" Answer; "It probably had. "(T7).

He was of the view that he did not think that the treatment regime should have been changed in those circumstances. He seemed to be of the view that looking at the size of the burn

suffered by Mr Summerell; he did not believe that it would have justified the introduction of medication at that particular time. He was of the view however, that once the vomiting of coffee grounds occurred "I probably would have given him this medication, but in the early stages it was probably not mandatory that he have this medication. "(T8).

He indicated that the development of gastric ulcers had once been a substantial problem, but with modem developments it was only occasionally a problem. He also indicated that there was still ongoing debate as to whether the medication prevented the ulceration or treated the ulceration once they had occurred.

Dr Kennedy indicated that it was more or less standard procedure that preventative dnigs were administered to major injuries in specialised bum units. It is clear from his evidence however, that Mr Summerell was not a major injury.

Timing of the Burn: Mr Summerell was first seen at the hospital by Christopher Riddle who described his position as a Triage Nurse. Mr Riddle handed over the care of Mr Summerell to Isobel Harvey, a nurse who had particular experience in bums. Ms Harvey provided a statement to the representative of the ACT Government on 3 December 1999 and gave evidence at the hearing. Ms Harvey indicates that she first saw Mr Summerell at about 9:50am on 29 November 1999 and in her view "the burns could have been consistent with a 12 hour old bum, or a burn that was only a couple of hours old"[Exhibit 46].

Ms Harvey gave evidence and was of the view that based upon her memory of the state of his clothing, the bum had occurred about an hour before she saw Mr Summerell at lO:OOam.

This view is perhaps slightly different to the opinion she had expressed on 3 December 1999 in her statement.

Ms Harvey called Dr Kolli to examine Mr Summerell. Dr Kolli was employed in the Emergency Department of The Canberra Hospital and examined Mr Summerell at about lO:OOam on 29 November 1999. Dr Kolli was not seen by the investigating police until 20 June 2000 and his memory of his treatment was, as I understand it, based upon notes. He indicates in his statement that the bums were "at least more than six hours old".

Dr Kolli referred Mr Summerell to Dr Preketes. Dr Preketes was employed at the relevant time at The Canberra Hospital as the plastic registrar. The police did not speak to Dr Preketes until August 2000. Dr Preketes indicates that he examined Mr Summerell at about 11:30am on 29 November and in his opinion the bums had not taken place in the previous three to four hours of that morning.

Dr Taylor, a plastic surgeon, become involved with the management of Mr Summerell at the request of his Registrar Dr Preketes. Dr Taylor did not examine Mr Summerell until the Wednesday morning 1 December. He was asked however in his statement that was provided to the Accident Review and Investigation Agency on behalf of the ACT Government whether he could provide an opinion as to the time at which Mr Summerell had sustained his bums.

The statement [Exhibit 21] indicates as follows, "When one sustains a burn it depends upon the burning medium. If it is hot water at 100 degrees it does not take much more then a second to create a significant burn.

However when one deals with water from the tap which is about 50,55 degrees the time to burning significantly is a lot greater, being several minutes. When tissue gets burnt some of it gets destroyed and other parts of it gets impaired and then there is an area around there of redness caused by increased vascularity. When tissue is burnt it destroys some capillaries and other ones open up in sympathy so large amounts of fluid pour out from the burnt area. When the epidermis is breached, in other words after the blister has been created and the top comes off, there is a large amount of fluid exudate. Exudation happens very quickly so fluid resuscitation protocols from burns are timed from the time of the burn. The fluid resuscitation formula that we use is from Dallas and it says that for every percentage of body surface area burnt you need to give 20 ml of fluid per Kilogram of the patient. Most of the fluid exudation occurs in the first eight hours after the burn and after that the patient is significantly behind. The problem with most burns is that they get to medical resuscitation fairly quickly and people get too much fluid. If however you get a situation where someone has been burnt sometime in the past you are already a lot of fluid behind".

The doctor went on to indicate, ''from our point of view all we can say is that from his state when he came to hospital he had obviously been burnt some time before hand because he was a considerable amount oftime in volume behind in his fluid replacement".

It was as a result of this fluid loss that he suffered the renal difficulty that caused problems during his admission.

It is not possible from this evidence to precisely state a time at which Mr Summerell sustained the injury, which ultimately caused his death. The evidence however clearly indicates that the injury on balance was sustained some hours prior to his admission to the hospital and it is also clear, particularly from the evidence of Dr Taylor and Dr Kennedy, that any delay in taking Mr Summerell to the hospital led to dehydration problems which caused the renal failure and which ultimately it seems caused the onset of the gastric erosions.

What happened at the Hospital: Mr Summerell arrived at the Emergency Department of The Canberra Hospital at approximately 9:48am on 29 November 1999 in the company of Mr Lotfizadeh. He was initially seen by Mr Riddle, a registered nurse, who was performing duties as the Triage Nurse. Mr Riddle referred Mr Summerell to Ms Harvey who is described as a clinical nurse consultant. Ms Harvey arranged for some treatment to begin and requested the attendance of Dr Kolli the Emergency Department Registrar. Ms Harvey in her statement [Exhibit 46] indicates that she began dressing the burns in a formal way at about 1:OOpm that day.

Morphine was intravenously administered at about !0:30am and again between 1:OOpm and 1:15pm. Ms Harvey completed her treatment of Mr Summerell and handed his care over to Nurse Howlett and arranged for Mr Summerell's transfer to Ward 10 A. Intravenous infusions were begun at about this time. Ms Harvey indicates that at an earlier time prior to 1:00pm it was observed that Mr Summerell's oxygen level was 4ropping and oxygen treatment had been begun. This was not regarded as significant by Ms Ha.rVey.

Dr Kolli states that he first saw Mr Summerell at about lO:OOam on 29 November 1999 and he describes in his statement [Exhibit 17], the extent of the burns as follows "he had extensive partial thickness burns to the back, left anterior chest wall and left thigh with blisters, exudate and scalding. His total TBS (Total Bums Score) was 17.5 percent." Mr Summerell was seen by Dr Preketes at about !1:30am on 29 November 1999. Dr Preketes was acting as a registrar for Dr Taylor who formally took over the management of Mr Summerell on 1 December 1999. Dr Preketes indicates in his statement, [Exhibit 16], that Mr Summerell was seen by himself and I assume Dr Taylor each day following his admission.

Dr Preketes noted that Mr Summerell had become dehydrated the day after his admission and his intravenous fluids were increased. This dehydration persisted for a few days and a renal consultation was organised. Dr Preketes notes that on the evening of 2 December 1999, Mr Summerell had developed "coffeeground vomitus". Dr Preketes indicates in his report that he was not notified of this fact.

Dr Taylor in his statement [Exhibit 21] indicates that he saw Mr Summerell while on his rounds on 1 December 1999 and appears to have decided to wait for some weeks in order to see how the bums progressed before a decision would be made concerning a possibility of skin grafts.

The nurses and examining doctors who dealt with Mr Summerell during the morning and early afternoon of 29 November all had some contact with Mr Lotfizadeh. None of them have a clear statement to make in relation to what Mr Lotfizadeh said to them concerning Mr Summerell's injuries. All however are of the view that they were told that Mr Summerell had been injured in the shower. Apart from that fact it would be fair to say that each person who had contact with Mr Lotfizadeh received little if any useful information from him concerning Mr Summerell.

A statement was provided by Dr Yeow, [Exhibit 32], who was employed as the plastics intern at The Canberra Hospital. He worked with Dr Preketes. Dr Yeow had daily contact with Mr Summerell and refers to some degree of abnormality that had been detected in ongoing blood tests. Dr Yeow was of the view that these abnormalities were probably caused by dehydration and decisions were made by himself and Dr Preketes to increase the fluid intake.

Dr Yeow was present on 1 December when Dr Taylor and Dr Preketes examined Mr Summerell. The concern earlier expressed about irregularities in blood and urine caused a decision to be made on the morning of 1 December to have an ultrasound conducted in relation to Mr Summerell's kidneys and to involve renal specialists in his treatment.

A statement was provided by Dr Phan Tran, [Exhibit 31]. Dr Tran states that he was employed at The Canberra Hospital on 2 December 1999 when he was called to attend Ward lOA to examine Mr Summerell. He states that he attended the ward at about 7:00pm and observed Mr Summerell eating his evening meal. He noted the history at that time, based

upon advice from others, that Mr Summerell had three small vomits. He was shown a towel with a small stain on it but was not able to form any concluded view of the significance, if any, of this stain. Dr Tran conducted a physical examination of Mr Summerell and stated, "there did not appear to be any undue stress of the patient, nor evidence of discomfort. " He reviewed the results of blood tests and requested the nursing staff to check his blood levels the following morning and if there was any complaints of abdominal pain or any evidence of vomiting, to contact him. He had no further contact with Mr Summerell.

A statement was provided by Dr Raghavendra Parige [Exhibit 34]. Dr Parige was employed at The Canberra Hospital and first saw Mr Summerell in Ward lOA at approximately 10:30pm on 1 December 1999. He conducted an examination and reports that at the time of that examination Mr Summerell had no complaints of pain and his urine output was good. He gave certain advice to the staff concerning the continuation .of the fluid regime and also to arrange for a blood test in the morning.

He was contacted at about 6:17am on the morning of 3 December 1999 and attended Ward lOA to discover Mr Summerell was deceased. He describes Mr Summerell as being pale and "he had dry coffee grounds around his mouth and his neck". Dr Parige certified Mr Summerell as being deceased at 6:23am on 3 December 1999.

A number of nurses were involved with the care of Mr Summerell during his stay at The Canberra Hospital and statements have been· provided by some of these nurses.

A statement was provided by Jeanette Ann MacCullagh [Exhibit 35]. Ms MacCullagh states that she was on the night shift on the evening of 2 December between 10:30pm and 8:00am.

She states that she received a phone call at approximately 6:00am from Pamela King who is described as the Acting Level 2 Registered Nurse on duty in Ward lOA. (Ms King was not actually caring for Mr Summerell) Ms MacCullagh indicates that following the receipt of the phone call she contacted Paula Beadman and attended at Ward 1OA. She indicates that Mr Summerell appeared to be deceased upon her arrival and she observed what appeared to be coffee ground vomit on his face, his gown and his bedclothes. Ms MacCullagh also comments, as indeed did Dr Parige, on the failure of the relevant nursing staff to apply a particular procedure relating to contacting doctors and resuscitation. As I understand Ms MacCullagh's statement she indicates that the relevant nursing staff indicated that they had

not engaged in that procedure on that morning as they were satisfied that Mr Summerell was deceased.

A statement was provided by Pauline Kotzur [Exhibit 36]. Ms Kotzur indicates that she was on duty in Ward lOA together with a number of other nurses and during the course of the evening Mr Summerell had been checked at least hourly and that he was asleep most of the night. Ms Kotzur states that at about 6:00am she and another nurse commenced their 6:00am rounds and she went to Mr Summerell's room and found him. She states that she observed "massive vomit all over his chest. The vomit was dark blood stained and it was a terrible mess". Ms Kotzur formed the opinion that Mr Summerell was deceased and a decision was made not to invoke the relevant procedure of resuscitation. Ms Kotzur in her statement indicates that she was of the view 'it could have been half and hour or up to an hour that he had been passed away".

A statement was provided by Susanne Jane MacKinnon [Exhibit 38]. Ms MacKinnon was on duty in Ward lOA on the evening of 2 December and describes the shift as being "pretty uneventful" and believed that Mr Summerell had slept just about all night. Ms MacKinnon states that she had made an entry in the patient progress notes at 5:30am on 3 December to the effect that "he appeared to sleep well, that there were nil complaints and his vital signs were within normal limits" Ms MacKinnon concedes that she would not have actually seen Mr Summerell at the time that she made the entry in the notes and that the entry would have been based upon her observations during the course of the evening.

She states that about 6:00am she set off on her rounds with Ms Kotzur and that Ms Kotzur brought her back to Mr Summerell's room shortly afterwards, she entered the room and observed "Neil's eyes were shut, he was blue and he had what appeared to be coffee ground vomit over his chin, down his neck and also on the top of his shoulders of his pyjamas." Ms MacKinnon was satisfied that he was deceased.

A statement was provided by Ms Pamela King [Exhibit 39], and she states that she first had contact with Mr Summerell commencing at about 9:00pm on 29 November. She describes him, during that night, as a bit restless and that he was calling out. He was then receiving IV therapy for re-hydration and was also having morphine for pain.

Ms King was on duty again from 9:00pm on 2 December and recalls Mr Summerell as being unusually quite during that evening. She observed Mr Summerell shortly after 6:00am on 3 December and also observed the vomit all over his mouth. She indicates that she was satisfied that he was deceased and agreed with the decision not to follow the routine involving resuscitation.

A statement was provided by Judith McRae [Exhibit 40] who stated that she had been a registered nurse since 1969 she had been employed by ACT Health for 16 years and at The Canberra hospital for about 5 years. At the relevant time she was working in Ward lOA an had been working there for about two and a half years. She recalls being on evening duty on 30 November when she commenced at about 1:00pm. She had, it seems, considerable contact with Mr Summerell during his time in Ward lOA. She was involved in discussions with Dr Yeow concerning his condition and participated in the care of Mr Summerell. She stated that Mr Summerell did not complain of pain but it was Ms McRae's opinion that he would have been suffering a considerable degree of pain. She describes in her statement how she dealt with the treatment of his bums and indicates that at some point in time, possibly around 88:30pm on 30 November, that Mr Summerell "vomited undigested food". After this his dressings were reinforced and he settled down.

Ms McRae saw Mr Summerell the next day, again on evening shift, and she describes him as much more comfortable.

Ms McRae was on day shift on 2 December having commenced at about 7:00am. Ms McRae indicates that she gave Mr Summerell some morphine at about 9:00am prior to the removal of his dressings, his shower and the subsequent redressing of his bums. She describes him as sitting on a plastic shower chair while she removed the dressings. When she removed the dressings she observed for the first time the extent of his bums and "felt empathy with him. I remember expressing something in gentle sympathy and saying something like, 'oh poor Neil you are in the wars aren't you buddy, what happened mate?' I can clearly recall his response. He was sitting on the shower chair at that stage and he looked up and (sic) me and said 'I waited and waited for my shower but nobody came so I did it myself".

Ms McRae also gave oral evidence and was pressed concerning the comments she says were made by Mr Summerell. It has been suggested by some witnesses that Mr Summerell did not have the capacity to speak the number of words referred to by Ms McRae. There is however constant reference in the materials to a capacity that Mr Summerell clearly had to say words. I have no doubt that Ms McRae is quite convinced about what she says Mr Summerell said to her and I have no reason at all to doubt her truthfulness in this area. While it might be difficult in the overall context of the evidence to accept that Mr Summerell did say these words to her, I am content to accept that they do reflect something that occurred on the morning of 29 November 1999 and may have been said by Mr Summerell toMs McRae.

A statement was provided by Kaylene Veronica Riley [Exhibit 41]. Ms Riley indicates that she was on duty at Ward lOA on 2 December 1999 between 5:00pm and !O:OOpm one of her patients during that. time was Mr Summerell. Ms Riley describes that at some stage during that evening she observed some fluid on his bib that was brown in colour and that she changed the bib. She thought at that stage that the fluid was as a result of Neil eating chocolates because there were chocolates in his room. She describes that she later spoke to another nurse on duty and she was told by that person that Neil's bib had been changed at least once before.

Ms Riley indicates that on about three occasions during a period she believes to be between about 5:00pm and 6:00pm, she changed Mr Summerell's bib as a result of brown fluid. She formed the view on the final occasion that the fluid "may have been coffee ground coloured blood." She contacted the Resident Medical Officer and Dr Tran attended and examined Mr Summerell at about 7:00pm on 2 December 1999. Ms Riley states that after Dr Tran left Mr Summerell had his dinner but "he did not want to eat". She got him a cup of tea.

Ms Riley notes that Mr Summerell's observations "were fine at 9:00pm".

A number of other nurses provide statements but they do not add to the general picture concerning Mr Summerell's care while he was in Ward lOA.

Risk Managers: Ms Lyn Grayson who was the director of Disability Programs within ACT Community Care at the date of the death of Mr Summerell gave evidence concerning the appointment of Risk

Managers. Ms Grayson had given evidence concerning Risk Managers during the inquest into the death of Brett Ponting and I made some reference to the Risk Managers in my report into Mr Panting's death. The long delay in finalising the inquest into the death of Mr Summerell has provided an opportunity for a brief examination to be made of the development of the Risk Manager program. Ms LePavoux and Ms Gahan gave evidence concerning their roles as Risk Managers. Ms LePavoux was a Risk Manager for Disability ACT Individual Support Services and had occupied that position, as at 2 September 2003, for two years and three months. She commenced her employment in May 2001. She had originally commenced employment as a Risk Manager with ACT Community Care but this program had now been transferred to the Disability Services as of 1 July 2003. There were still Risk Managers employed by Community Care but they have no role in relation to Disability Services.

Ms LePavoux was, as at the date of her giving evidence, the only Risk Manager employed by the Disability Services but her evidence indicated that there was an expectation that another person would be appointed in the near future.

Ms LePavoux described in some detail and provided a number of documents setting out the role that she had played, with the support of others, since her employment in May 2001. She described that her role was not that of a person who went out to each residence and conducted an individual risk management assessment of the residence and the clients. A substantial portion of her activities over the past years has been in an attempt to raise the awareness of carers within the disability services, both Government and, to a lesser extent, non-government agencies, as to the role of the Risk Manager and as to the availability of the Risk Managers to conduct, upon request, assessments of risk and to make recommendations in relation to such risk.

The evidence of Ms LePavoux and Ms Gahan clearly indicate that if there is to be an individual assessment of residence and client then a greater number of Risk Managers must be employed for this purpose. This situation was graphically illustrated by the evidence of Ms LePavoux that during her time as a Risk Manager approximately one half of the clients of Disability Services had been subject to any form of risk management assessment.

The result of the evidence from the Risk Managers would seem to be that although they represent a substantial step forward in relation to the safety of persons resident in Disability Service Homes, the restrictions imposed by the small number of Risk Managers does not give one any confidence that incidents such as those that lead to the death of Neil Summerell and indeed in particular to the death of Brett Panting will be eliminated.

I am satisfied on the evidence of Ms LePavoux and Ms Gahan, who no longer assists Ms LePavoux but has a different appointment, that their efforts have been very substantial and the evidence of Ms Gahan in particular indicate the success of one particular assessment that was carried out into the presence, in Disability Services Houses, of inappropriate household cleaning chemicals.

There can be no doubt that if the risk, which clearly exists, in the management of persons with disabilities is to be reduce and be properly managed, there is a need for a great increase in the number of Risk Managers, if only in the short term, while a thorough assessment is made of each individual residence and of each individual client. Until such time as such assessments are made the community will not be able, in my view, to have the necessary degree of confidence which the community would expect to have in the safe operation of residences controlled by Disability Services.

Ms LePavoux and indeed Ms Hayes, who is the current Director of Disability ACT, both gave evidence concerning the absence of a proper system requiring a reporting back in relation to recommendations concerning risk assessments. Ms LePavoux indicated that during her time as a Risk Manager that some 55 risks had been identified as extreme. Ms LePavoux indicated that as at the date of giving her evidence she did not know how many of these had been resolved. She did indicate however that a new database was being created in an attempt to ensure that information was forthcoming concerning the finalisation of issues identified by the risk management process. Ms Hayes indicated that she did not know either whether all of the 55 matters had been resolved but did indicate that she was specifically required to be advised when anything was discovered during a process of risk management.

A further issue was raised by Ms LePavoux and Ms Gahan concerning difficulties they had experienced with a lack of cooperation with some of the officers of Disability Services. Both witnesses together with Ms Hayes indicated that of recent times, particularly since the

appointment of Ms Hayes as Director, that these difficulties had been resolved and Ms LePavoux in particular was confident that the difficulties which had clearly existed and which it would seem did not assist in the proper exercise of the Risk Managers functions had ceased.

Ms LePavoux gave evidence concerning the process involved in conducting a Risk Assessment and how it required the involvement of all relevant, interested parties. It is of concern to note that as at the date of Ms LePavoux giving her evidence in September 2003, the ACT Housing Authorities would not attend at meetings held by the Risk Manager. I understand the evidence given by Ms LePavoux, and others, to indicate that all houses operated by Disability Services are provided by the ACT Government. Some evidence has be given to suggest that the houses are not always appropriate for disabled people and there can be a need for ongoing alteration, in addition to repairs. It is entirely unacceptable that an organisation that carries the responsibility for the provision of buildings and fittings to Disability Services, for the use of disabled people within this Territory, not to participate in any meetings which directly impact upon risks that may flow from the building and its fittings. Ms Hayes indicated during her evidence that prior to her giving evidence, she had not been aware of this difficulty and having become aware of it indicated that she would take the issue up with the Director of Housing. I understand that the Director of Housing and Ms Hayes are both members of the one Department. It is to be hoped that whatever complication there may be which has resulted in the Housing Authorities not attending, where appropriate, meetings relating to risk management will come to an end and that all authorities within the Government who have an interest and a responsibility in relation to caring for disabled people within the Territory will cooperate fully to achieve the most reasonable and best result for all disabled people cared for by Governmental Agencies.

Ms LePavoux in her evidence indicated that it would be her wish that there be a separate Risk Management Unit within the appropriate Government Department. There has been some suggestion that there may be a benefit in having a statutory body established to oversee Risk Management in both Government and Non-Government sectors. The general tenor of the evidence however would tend not to support the establishment of a separate statutory body but would tend to support the establishment of a separate Risk Management Unit within the Department of Disability, reporting directly to the Director but with no other commitments to line management. It is clear from the evidence in this inquest and from other material, which I have heard in both the inquests into the deaths of Brett Ponting and Jamie Johnson, that the

issue of Risk Management in Disability Houses is a very real and critical matter which must be prioritised by those responsible for the administration of Disability Services within the Territory.

I intend to make a formal recommendation that there be established a separate unit within the Department of Disability responsible for Risk Management of all Governmental and Non Governmental institutions within the Australian Capital Territory, if this requires some statutory basis I would recommend the urgent introduction of appropriate statutory provisions.

Such a unit would need in my view a separate funding basis reflecting the significance of the work which must be done by Risk Managers.

I accept that the implementation of a recommendation to set up a separate Risk Management Unit within Disability Services, even if accepted by the Government, may well take a considerable time, and may well involve the provision of very substantial resources. This will no doubt inevitably result in some delay in increasing the number of Risk Managers. would suggest that in the mean time and indeed perhaps in the long term that the issues of risk management be incorporated as part of the ongoing review that occurs in relation to the preparation of individual plans for clients. The preparation of an Individual Plan has been described to me in previous evidence and involves, as I understand it, a careful consideration of the present and future needs and expectations in relation to each individual client. It would seem to me to be a desirable situation to have some form of documentation prepared by a Risk Manager to focus the attention of the preparer of the IP of specific risk issues relating to each individual client. The evidence in this and other inquests is clear that there can be risk factors which are not obvious to those who engage in them. Unless these risk factors are highlighted and drawn to the attention of Risk Managers under the present process there is no prospect of such risks being properly considered and if regarded as a real danger to the wellbeing of a client, dealt with.

Delay Mr Summerell died on 3 December 1999. A Police enquiry formally commenced, although initial enquiries had already begun on 3 December, on 10 December 1999. Instructions were issued by me as the Coroner to the Police investigating team at around that time to conduct urgent enquiries in order to attempt to ascertain the time at which Mr Summerell had been burnt. Unfortunately the two principle medical practitioners Dr Kolli and Dr Preketes were

not interviewed by the Police until June and August 2000 respectively. In contrast the nursing staff and some, if not all the medical practitioners had provided statements to the investigator, appointed by the A.C.T. Government, on or very soon after 3 December 1999.

The brief of evidence containing the material and the statements obtained during what was an extensive police investigation was not received until late 2000 or early 2001. A direction hearing was held on 13 December 2000 and the hearing in relation to the circumstances of the death of Mr Summerell initially commenced on 5 February 2001. The hearing continued on 6 February, and 5,6,7 March 2001. An issue had arisen following the hearings in 2001 as to the circumstances of the treatment of Mr Summerell at The Canberra Hospital. These concerns caused the need for further enquiries to be made, particularly in relation to medical issues, and as a result of difficulties in obtaining this material the hearing was unable to resume until May 2002.

I began after the ending of the evidence in May 2002 to write my report concerning the death of Neil Summerell. It became clear during this process that a number of items had not been produced to the court during the hearing. A further issue arose from a careful reading of materials, which in part had been provided to the court, that there was an issue in relation to activities on the part of staff at [redacted] Street to obtain improvements in relation to the bathroom facilities that had been present at the time of Mr Summerell's death. As a result of these issues I caused further enquiries to be made and these enquiries were not concluded for a considerable period of time. The further hearing of the evidence arising out of these enquiries took place on 23 August 2003.

There has been an unacceptable delay in concluding the inquest into the death of Mr Summerell. The reasons for the delay are many and varied but include in particular a problem which has occurred in relation to a number of inquests where very extensive enquiries are needed to be made by the Police. I am in no way intending to be critical of individual police officers relating to this inquiry but it regrettably is an extreme example of the problems caused by a lack of a separate group of properly trained and experienced police officers who are able at short notice to conduct the sorts of examinations and investigations which are required into certain classes of inquests. I have personally been involved in a number of inquests involving deaths in custody and also inquests involving deaths at Disability Services

houses. These inquests however are not unique and there are numerous inquests into deaths that occur either in hospitals or in circumstances where Government agencies are involved.

Experience shows that inquests into deaths arising in such circumstances raise particular issues and there is a certain need for a properly dedicated body of police investigators to be able to assist the Coroner in relation to such deaths. As I have mentioned above, the enquiries conducted by the A.C.T. Government into the death of Neil Summerell, were underway on the day of his death. As a result of the inability of police to dedicate themselves to enquiries of this sort independent of the multifarious other tasks that they have to perform, delay inevitably occurs. It is clear that the demands upon the A.F.P. are increasing on a constant and almost daily basis and the availability of properly experienced and trained officers to assist the Coroner in the execution of the Coroner's public responsibility concerning deaths particularly involving Government instrumentalities is becoming more and more limited.

I am of the view that the community cannot accept this limitation on the role of Coroner. I intend to recommend that the Government approach the A.F.P. to ensure that a properly staffed separate unit of Police investigators is appointed, as a matter of urgency, to undertake enquiries into all deaths subject to the Coroner's Act but more importantly to conduct, as a matter of expedition, enquires into deaths when that death occurs in circumstances involving Government instrumentalities.

My personal experience over a number of years of involvement with such deaths indicates that there is a particular need for police officers to be experienced in such enquiries and to have an understanding of the workings of Government instrumentalities.

Conclusion Neil Summerell was a mildly disabled person who as a result of difficulties, which had arisen over recent times prior to his death, began to reside at [redacted] Street. The evidence clearly indicates that he had a capacity to carry out some functions in his day-to-day activities and in particular had a capacity to dress himself and have a shower. The house in which he resided was one which required 24 hour staffing but did not requires a carer in the evenings to be on night shift. That is to say that the carer employed during the evening was employed specifically on a sleepover shift.

The evidence before me indicates that there are problems associated with such shifts. In the case of [redacted] there were no alarms of any description on doorways that would draw the attention of a carer to the fact that one of the residents had got up out of their bed during the night. The evidence of Mr Cahill, which does not appear to be in dispute, is that it is the fond hope of those who are employed on sleepovers and those who are responsible for the overall care of persons in DisabilityHouses, that a sleepover worker will indeed wake up if his or her assistance is needed during the evening. The evidence of Mr Cahill and the circumstances in which he attended to perform the sleepover does not give me any confidence that such a system is satisfactory. I accept that economic considerations may well preclude an arrangement other then that which existed at [redacted] on the evening of 28/29 November 1999, but there must be, in my opinion, an installation of some form of alarm, which will specifically attract the attention of a sleepover person in those circumstances. I understand from some evidence which has been given in the inquests into the Disability Services deaths, that alarms may have already been installed in at least some houses, but I would recommend that alarms be installed at all houses where a sleepover occurs.

It is not possible on the evidence before me to reach a formal conclusion as to the precise circumstances in which Mr Summerell sustained his injury. I have already indicated that I prefer the evidence of Mr Cahill to Mr Lotfizadeh, but even having said that it is not possible to draw from the evidence in any direct or indeed in any satisfactory inferential way a final view on the circumstances of the evening and morning.

There would appear to me to be at least two possible scenarios.

1. The first scenario is that Mr Lotfizadeh is aware of the circumstance that occurred that morning but has chosen, possibly in order to protect his employment, to lie about his knowledge.

2. The second alternative is that Mr Summerell, who was a person of routine and habit, waited as he said, in my view to Nurse McRae, for a considerable period after his normal expected arousal time of about 6:00am, for someone to attend upon his room to request that he go for his shower. When this did not occur he ultimately got up and went to have a shower himself and was burned while so doing. There is clear evidence that the fact of him getting up to have a shower himself was not an entirely unusual circumstance. He was clearly able to do this and clearly able to dress himself after showering.

The evidence would tend to suggest that where this situation arose a carer would generally hear the movement and/or the shower and would become involved in the activities of Mr Summerell, particularly in relation to the IP that he be supervised in the shower.

If this is what occurred on this morning then it is clear that Mr Lotfizadeh neither heard nor saw anything of any of activity in relation to showering.

The telephone calls made by Mr Lotfizadeh would seem in the circumstances to be of significance. The call to 6:32am to Desailly House clearly indicates that Mr Lotfizadeh had no concern about Mr Summerell. The call at 7:12am raises for the first time the anxiety that Mr Lotfizadeh clearly had at that time. These two telephone calls in the absence of any other acceptable evidence would tend to indicate that Mr Lotfizadeh became aware of or became concerned about the fact that Mr Summerell was in difficulty some time prior to 7:12am. I am content to accept that at 6:32am there was nothing in the phone call to suggest that he was aware of any such difficulty. This would tend to suggest that Mr Summerell was injured in the shower some time after 6:00am. This circumstance therefore would support the view that Mr Cahill had left the premises at the time of the injury being sustained by Mr Summerell.

The circumstances of the incident will, I think, never be known as it is clear that Mt Lotfizadeh either has deliberately chosen to mislead the inquest or alternatively has not the slightest idea of what happened on that morning.

The evidence indicates that Mr Lotfizadeh was not able to cope when he discovered that Mr Summerell was injured. He attempted to obtain some assistance from Ms Gayle Rose, the ASM, and Ms Davidson prior toMs Davidson's arrival at about 9:00am; these attempts for various reasons were unsuccessful. Mr Lotfizadeh, in my view, found himself in a situation where he did not know what steps to take as he was concerned about the various tasks that were assigned to him on that morning. He had a need to ensure that all of the residents left the premises at the same time as they could not be left by themselves. He had a need to consider the transportation of the resident who was not present in the home that evening and he also had a need to consider the circumstances of the other resident who was present in the home. This combination of anxieties led it would seem to the first telephone call to Desailly

House at 6:32am. The inability of the various people who he called to provide any support to him is in the circumstances regrettable.

Mr Lotfizadeh for reason which are unclear but which may relate to his inexperience, lack of qualifications and concern about the concept of privacy prevented him from physically inspecting Mr Summerell's injuries. Fortunately Ms Davidson was not restrained in the same way and it was only her appropriate investigation upon her arrival that led to proper action being taken to transport Mr Summerell to the Hospital.

The evidence, particularly of Dr Kennedy indicates that the delay between the time of scalding, which certainly was prior to 7:12am, and the arrival at the Hospital at about !O:OOam directly contributed to the death of Mr Summerell. Dr Kennedy's evidence, as I understand it, clearly indicated that a significant delay in the treatment of a person with substantial burns can lead to the development of gastric ulcers and that these ulcers can lead to death.

The circumstance of the incapacity of Mr Lotfizadeh to properly carry out his responsibilities raises a number of issues.

The first is the role of casuals in Disability Service Houses. The evidence in this and other inquests clearly indicates that there is a constant demand for casuals workers to act as carers in the various houses controlled by Disability Services. These carers are in part supplied directly by Disability Services, but are also supplied by various external agencies. The two carers on duty on the evening of the burning of Mr Summerell were both provided by Capital Health Call. Both of them seemed to have had some degree of training and Mr Cahill had a greater degree of experience and personal exposure to the needs of Mr Summerell but it is clear that both of them failed to carry out the most routine obligations they had as carers.

Neither Mr Cahill nor Mr Lotfizadeh bothered to read the individual plan relating to Mr Summerell. Mr Cahill's explanation for this failure was that the circumstances of his sleepover shift did not require such knowledge and his personal knowledge, at least of Mr Summerell, made it unnecessary for him to bother to read the information contained in the documents at the house. Such a situation is of course entirely unacceptable and wrong.

If a carer is employed to be responsible for persons in circumstances such as Mr Cahill and Mr Lotfizadeh it is clear that industry standards, common sense and duty of care must require the carer to be as familiar as possible with the circumstances of each individual resident in a house.

Mr Lotfizadeh had less excuse, as I understand his position in not reading any of the material.

I am not able to form a view as to whether he declined to read it as a matter of principle or that he was so poorly trained that he did not actually understand what his responsibilities were. Mr Lotfizadeh in his evidence stated that he had never been to any induction course conducted by Capital Health Call or any other organisation but this of course is disputed by Capital Health Call. I have already indicated, that in the circumstances it is, I think appropriate to accept, that Mr Lotfizadeh did attend some form of induction program but it would seem in all· of the circumstances that he learnt very little, and certainly he does not appear to have been able to properly apply any training on this morning. It would seem that there must be a review of the programs conducted particularly by those that provide casual workers so as to ensure that circumstances which confronted Mr Lotfizadeh are able to be coped with in a slightly better way then Mr Lotfizadeh did on this occasion.

I have indicated above that it is not possible in the circumstances to decide a time at which Mr Summerell sustained his bums. A further issue for consideration is the mechanism of how he sustained the bums. The only real evidence concerning the nature of the bums and the possible explanation for their distribution is provided by Nurse Harvey in her statement [Exhibit 46]. Ms Harvey indicates that in her opinion the "scalds would have had to have occurred with Mr Summerell's left arm raised in the air because he did not have burns to his left arm, apart from a small area on his shoulder and upper arm, yet his left chest was extensively scalded." Ms Harvey also indicated that the nature of the bums suggested that Mr Summerell was not standing upright in the shower at the time of his scalding as this would have resulted in trickle type bums down his legs and in particular on his feet.

I have carefully considered all of the evidence of the nursing staff and the medical practitioners as to how Mr Summerell was burnt. It seems most likely, although I cannot be satisfied to any comfortable degree, that Mr Summerell was beginning to have his shower and had used his left hand to tum on the hot water tap. The photographs contained in Exhibit 52

indicate that the taps were on the left hand side of the shower recess. The hot water tap being the higher of the two taps. One can speculate that at that point in time and prior to Mr Summerell turning on the cold-water tap he had a drop seizure and fell or slumped into the shower recess. There was no tempering valve installed at the residence at the time of the scalding of Mr Summerell but this situation has long since been remedied. The evidence of Dr Taylor suggests that for someone to be burned in the way that Mr Summerell was burned in an ordinary domestic situation would require some time under the hot water. The evidence indicates that Mr Summerell suffered on a regular basis from drop seizures, which lasted from a very short time to a matter of some minutes.

If Mr Summerell fell or slumped into the shower as a result of a drop seizure it would be necessary, if the opinion of Ms Harvey is correct, for him to have ended up in a situation where his feet and right side were not exposed to the hot water. It is difficult to comprehend how such a situation may have occurred but it is, in my view, the only likely explanation for the circumstances of the injuries from which Mr Summerell clearly suffered. Some alternative proposals were suggested, particularly by Mr Bayliss, but I do not believe that there is any evidence to support any alternative other than that the injuries were sustained in the shower. Mr Summerell himself apparently said to Nurse McRae that he had been injured in the shower; Mr Lotfizadeh in so far as one can accept what he said to the staff at the hospital also indicated that he had been injured in the shower.

There had been a concern over a considerable period of time concerning the safety of the shower in so far as Mr Summerell was concerned. Ms Catherine Young, a worker at [redacted], had been agitating for a considerable period of time for the provision of a new shower as it was clear that Mr Summerell had a history of collapsing in or near the shower or bath. The shower as it existed in December 1999 consisted of sliding doors and a glass wall.

One of the doors at least was the subject of numerous problems and as I understand the evidence no longer existed and there was a gap in the front door area of the shower screen.

Ms Young's efforts had been supported by an Occupational Therapist but at the date of the death of Mr Summerell, no action had been taken by the appropriate authorities to ensure that a more appropriate and safer shower recess, than existed as at December 1999, was provided.

Significantly after the death of Mr Summerell the shower was entirely rebuilt as shown by the photographs taken by Mr Gray and his assistants as part of the A.C.T. Investigation into the death of Mr Summerell. The efforts of Ms Young are to commended but it is highly

regrettable that those responsible for the decision making process, including one would assume the Housing Authorities, had taken no steps to remedy what was clearly an entirely unsafe and unsatisfactory situation.

While I am not able to say with any certainty I would suggest that Mr Summerell got up of his own volition some time after 6:00am and went and had a shower. During this shower he fell or slumped into the shower recess with his feet outside the shower recess and with his right side furthest from the hot water source. He recovered from his drop· seizure and returned to his room where he dressed himself. It is clear that he must have been in a considerable degree of pain, notwithstanding his well-known high tolerance for pain. Ultimately his distress came to the notice of Mr Lotfizadeh and led to the telephone call at 7:12am. Thereafter the incapacity of Mr Lotfizadeh to either obtain proper support or to adequately deal with the issue himself by insisting on inspecting the injury and calling an ambulance led to the ultimate death of Mr Summerell.

The delay in taking Mr Summerell to the hospital led to the complication of dehydration and the development of gastric ulcers. While one may wish that there had been more frequent and recorded attendances by nursing staff upon Mr Summerell during the morning of 3 December, it is clear that once the ulcers develop there was little that could be done to have preserved the life of Mr Summerell. I have carefully considered the evidence and the submissions of the parties and I am of the view that there is nothing in the conduct of the doctors or nurses at the hospital which would cause me to make any adverse findings against individuals or the system itself.

Findings, Recommendations and Comments.

Findings I am required under Section 52 of the Coroner's Act 1997 to find, if possible,

(a) the identity of the deceased; and

(b) when and where the death occurred; and

(c) the manner and cause of death.

I, accordingly, make the following findings:

(a) the deceased was Neil Summerell

(b) the deceased died at The Canberra Hospital some time before 6:00am on 3 December 1999

(c) the deceased died as a result of extensive blood loss from acute gastric erosions following severe scalding of the trunk and upper left leg. These injuries were sustained by the deceased on 29 November 1999 in the shower at [redacted] Place Kambah A.C.T. I am not able on the evidence before me to find the precise manner of hisscalding but it is clear that it occurred in the shower. I am of the view that the scalding was accidental.

Recommendations (Section 57) Section 57 of the Coroner's Act allows a Coroner to make recommendations to the Attorney General on any matter connected with an inquest including matters relating to public health or safety. Based upon the evidence put before me during the inquest I would make the following recommendations:

1. I would recommend that there be an urgent review of the need to install alarms on all doorways in houses managed by Disability A.C.T. Individual Support Services (Disability Services) in which sleepover carers are employed. If such alarms have not already been installed I would recommend their installation as a matter of urgency.

2. I would recommend that there would be an urgent review of the training provided to casual carers engaged in caring for residents of homes managed by Disability Services. This review ought include a review of the qualifications of persons available from agencies for employment by Disability Services so as to ensure that all persons provided as casuals are properly qualified and trained to carry out their responsibilities.

3. I would recommend the immediate introduction into Disability Services of a Risk Management Unit which would be headed by an appropriately qualified and ranked person reporting directly to the Director of Disability Services. The recommendation also is that this Unit be properly resourced and staffed.

4. I would recommend that the above mentioned Unit, when formed, or in the interim by persons specifically employed on a short tern basis, conduct an immediate review into all individual residents and all individual Disability Services Houses within the Territory to ascertain any risk present and to initiate steps to eliminate or minimise the risk.

5. I would recommend that there be a review of the handover process to ensure that a worker is required to read the materials present in the house relating to individual residents and in particular the IP. There is a need to have a process to ensure that these responsibilities are carried out and in some way the process would need to be recorded or certified as having happened by the individual worker.

6. I would recommend that there be a review of the availability of supervising staff above the carer level in out of work hours so as to ensure that a situation such as arose with Mr Lotfizadeh can be dealt with immediately by a supervisor. The evidence suggest that such a process was, at least in theory available, but it did not work on this occasion and perhaps caused unnecessary panic on the part of Mr Lotfizadeh.

7. I would recommend that consideration be given to the implementation of a Risk Management exercise as part of the ongoing IP process so as to ensure that all those involved in the preparation of the IP focus specifically on any risks associated with each individual resident and particularly any risks which may be associated with the house in which each individual lives as those risks relate to the individual.

8. I would recommend as a matter of urgency that a dedicated group of Police Officers be set up and trained to assist the Coronia!process in the investigation of deaths in the Territory particularly deaths occurring while the deceased is subject to care provided or supervised by Government Instrumentalities.

9. I would recommend that there be a review of all I.P.s and other instructions contained in material available in residences so as to ensure that all instructions are clear and unambiguous particularly in matters involving issues of privacy. I have made this recommendation in the inquest into the death of Brett Panting and I would assume that some steps have been taken in response to that recommendation. It is

clear however from the conflict in the materials relating to Mr Summerell that there needs to be precise instructions given and understood and accepted by carers concerning supervision relating to bathing or toileting.

10. I would recommend that a protocol be developed by Disability Services to ensure that where reports or other information are filed either within the residence or at the administration level then the writer of the reports or other documents must identify themselves and date the reports. A number of documents exist in the materials considered by me which would appear to contain significant information but there is no way of identifying the author of the document or the timing of the creation of the document.

Comments (Section 52) Section 52 of the Coroner's Act allows a Coroner to comment on any matter connected with the death, fire or disaster including public health or safety or the administration of justice.

Based upon the evidence before me during the inquest I would made the following comments:

1. The evidence of Mr Lotfizadeh was clearly untrue. I have given careful consideration to whether I ought recommend that the Director of Public Prosecution give consideration to prosecuting Mr Lotfizadeh in relation to his false evidence. I appreciate that the nature of the evidence may give rise to difficulties in relation to a prosecution and so I have finally concluded that I ought not make a recommendation in this report concerning the prosecution of Mr Lotfiazdeh. I would however comment that his evidence was clearly, at least in part, false and that he also had provided false information to Capital Health Call Pty Ltd that lead to his employment as a carer. It may be desirable that further consideration be given by the DPP to the advisability of instituting proceedings against Mr Lotfizadeh in relation to these issues.

2. The issue of Dignity of Risk was once again raised in this inquest. I have previously commented in the inquest into the death of Brett Ponting in relation to this issue and I do not think in the circumstances that it is desirable to make any particular formal recommendation concerning that issue in this inquest. I have referred briefly to the issue of dignity of risk under the heading of privacy in recommendation nine, but I would wish to comment additionally that it is clear that there remains an issue that requires careful consideration by Disability Services relating to ongoing training on

the issue of dignity of risk. This issue was raised in particular by Mr Bayliss in his submissions and with respect I support his view that there is clearly a need for careful ongoing training and supervision in relation to the application of the concept of dignity of risk in Disability Service Houses. The issue is clearly most dramatically exposed in relation to matters involving supervision at the time of bathing or personal hygiene generally.

3. Mr Bayliss in his submissions suggested that I ought recommend that consideration be given to a requirement that thermostatic mixing valves to control the temperature of hot water be installed in all residences in which vulnerable people including the young or the elderly or the disabled were resident. I do not believe in the circumstances of this inquest, baring in mind the fact that such valves have been installed, as I understand the evidence, in all houses in which Disability Services have an involvement, that it is appropriate to make such a recommendation. The evidence however clearly indicates that if such a valve had been installed at [redacted] then the injury would not have occurred. There may be substantial merit for consideration to be given by the appropriate authorities to an education campaign supporting the installation of such safety features in residences where there is a real risk of injury to the residents.

4. The Community Advocate in her submissions of 2001 recommended that there be a review of policies in relation to the expectation of carers doing sleepover shifts. In the circumstances I have not adopted this recommendation but I believe a comment supporting that proposal is appropriate. It is clear from the evidence that carers engaged in sleepovers are specifically employed to sleep but also to be available if a difficulty arises during the evening. There may need to be a degree of reinforcement and reassessment of the role of a sleepover carer so as to ensure that a correct balance is achieved between the need for the carer to sleep and the need for the carer to be available when required.

5. The Community Advocate also recommended that safety alert information be compiled in a short form from the IP and fixed to the front of the IP folder so as to alert carers, casual or otherwise, to those specific pieces of information. While I do

not make a formal recommendation in relation to this issue I would support the position put by Ms McGregor.

Adverse Comment (Section 55 of The Coroner's Act 1997) Section 55 provides that before an adverse comment may be made against an identifiable person notice of the proposed comment is to be given to the individual who has a right to make a submission or provide a written statement in relation to the proposed adverse comment. Notice was given pursuant to Section 55 to Mr Allan Lotfizadeh.

The notice to Mr Allan Lotfizadeh indicated that I was presently disposed to make an adverse comment in the following terms:

1. That as the carer of Neil Summerell, you failed to read the Individual Plan and other documentation available at [redacted] House, so as to ensure that you were aware of the requirements and responsibilities relating to your care of Mr Summerell.

2. That as te carer of Mr Summerell you failed to take any, or any reasonable steps to ensure that Mr Summerell did not place himself at risk in the shower.

3. That as the carer of Mr Summerell you failed to take any or any reasonable steps to find out the nature of the injury sustained by Mr Summerell and to take any or any reasonable steps to ensure that Mr Summerell received appropriate treatment in relation to his injuries.

The notice was delivered to Mr Allan Lotfizadeh on Thursday 4 December 2003. The notice allowed Mr Lotfizadeh until 5pm 19 December 2003 to make any submission or provide any written statement as he wished.

A submission has been received from Mr Allan Lotfizadeh and I have given it careful consideration however I am not of the view that any of the matters contained in the statement are sufficient to persuade me from making the adverse comment to which I referred in the

notice. A copy of the submission received from Mr Lotfizadeh is attached. Mr Lotfizadeh requested that his name be withheld from publication; I do not accept this submission.

I accordingly make the following adverse comments about the conduct of Allan Lotfizadeh;

1. That as the carer of Neil Summerell, you failed to read the Individual Plan and other documentation available at [redacted] House, so as to ensure that you were aware of the requirements and responsibilities relating to your care of Mr Summerell.

2. That as the carer of Mr Summerell you failed to take any, or any reasonable steps to ensure that Mr Summerell did not place himself at risk in the shower.

3. That as the carer of Mr Summerell you failed to take any or any reasonable· steps to find out the nature of the injury sustained by Mr Summerell and to take any or any reasonable steps to ensure that Mr Summerell received appropriate treatment in relation to his injuries.

Submissions: The manner in which the hearing of this inquest was conducted lead to a need for two sets of submissions to be filed by some of the parties. Two sets of submissions were received from Mr Russell Bayliss, Counsel for A.C.T. Health and Community Care Service and subsequently following changes to that service as Counsel for the Australian Capital Territory. Two lots of submissions were received from the Community Advocate, Ms Heather McGregor. Submissions were also received following the conclusion of the initial stage of the proceedings from Mr Paul Crabb, the solicitor for Capital Health Call Pty Ltd.

Capital Health Call did not take any further part in the hearings after the conclusion of the first stage of the inquest. No submissions were received from the Director of Public Prosecution, Mr Richard Refshauge, at the end of the first stage of the hearing as circumstances arose which did not required submissions at that time.

I am grateful for the careful and thoughtful submissions provided by the parties in this inquest. All of the parties, particularly the Community Advocate, have made recommendations some of which I have accepted and included in my formal

recommendations. Other recommendations and comments have been made which I have not formally adopted but which I would recommend for further consideration by all interested parties. I have accordingly attached to my report copies of the submissions received.

A timetable was settled upon between the parties at the end of the evidence, which required submissions to be filed by Mr Bayliss, on behalf of the A.C.T. Government, and the Community Advocate, on or before 12 September 2003. Submissions by Counsel assisting, Mr Refshauge, were to be delivered on or before 26 September 2003. Submissions have been received, as indicated, from Mr Bayliss and the Community Advocate but no submissions have been received from Counsel assisting.

this 23rd day of December 2003.

MICHAEL A. SOMES Coroner

SUBMISSIONS

CORONERS COURT OF THE AUSTRALIAN CAPITAL TERRITORY CD No 280 of 1999

MR MICHAEL SOMES CORONER INQUEST into the death of

NEIL SUMMERELL SUBMISSION ON BEHALF OF THE ACT HEALTH AND COMMUNITY CARE SERVICE Mr Neil Summerrell died on 3 December 1999 at the Canberra Hospital. He had previously been scalded on 29 November 1999. The issue, which is still unclear, is how Neil Summerrell came to suffer the scald that he did.

Neil Summerrell Neil Summerrell

1. Had only a mild (some reports say moderate) intellectual disability;

2. Was independent and cared for himself

3. Had some communication skills

4. Had impairment of vision

5. Had impairment of hearing

6. Appeared to have a high tolerance to pain;

7. Was able to shower himself, adjust water temperature;

8. Suffered from "drop" seizures being sudden onset epilepsy;

9. Was not physically disabled.

The events of 28 and 29 November 1999 On the afternoon and evening of 28 November 1999 Robyn Betty Page looked after Neil Summerrell. The evidence of Ms Page was that she assisted Neil to

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service shower that night and that there was no burn on Neil Summerrell's back at that time. Ms Page had First Aid training provided by the Army and would have recognised a burn. Ms Page was not crossexamined on this aspect of her evidence. Ms Page was a helpful, open and forthright witness who ought to be accepted as a witness of truth.

Ms Page was on shift until 1O.OOpm. Her relief did not arrive at 1O.OOpm so Ms Page contacted Lynne Grayson and reported this event. Ms Grayson contacted Capital Health Call ("CHC") pursuant to a contract between ACT Community Care and CHC. CHC provided a seNice, which inter alia included the provision of emergency relief workers.

CHC contacted Julian Cahill who arrived just before 11.OOpm Mr Cahill performed the overnight "sleepover" shift. Mr Cahill's evidence was that he:

1. would get up if he heard noise made by the residents during the night

2. had not checked on the residents when he awoke in the morning.

Next morning on 29 November he met Mr Lotfizadeh at about 6am when Mr Lotfizadeh arrived at the Group House.1 Mr Lotfizadeh was also a casual employee of CHC.

Mr Cahill gave his evidence in a forthright, perhaps flippant, manner. However it is clear that he could have so easily given a version of events that would put him in a better light, this is particularly so in regard to his evidence about whether he had or indeed would read the IP plan. I believed Mr Cahill.

In my submission so ought the Coroner.

For present purposes the most significant part of Mr Cahill's evidence describes the handover to Mr Lotfizadeh at about 6.00 the morning of 29 November. I submit Mr Cahill's version of these events ought to be accepted by the Coroner.

Mr Cahill said that:

1. he heard nothing

2. he did not see anything from residents during the handover with Mr Lotfizadeh which would indicate any injury occurring at that time to Neil Summerrell.

Lotfizadeh's evidence is problematical. There is no doubt that Lotfizadeh lied to the Inquest; the only issue is as to how far his evidence is contaminated by his lies. This raises the problem that Lotfizadeh was the only witness to what happened that morning. He was the only person who could tell the Inquest as to the mechanism of how Neil Summerrell came to be scalded. Lotfizadeh's lying is obviously a product of his fear of not having a job and fear of the Inquest. There 1 Exhibit 8 and oral evidence

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service is no evidence that Lotfizadeh did anything sinister or intentionally hurt Neil Summerrell and I do not make that submission.

However there is evidence that Neil Summerrell sustained a second degree burn that morning at about 7.10 to 7.15 and that Lotfizadeh tried to conceal the injury.

In so doing Lotfizadeh prevented Neil Summerrell from accessing treatment and/or appropriate pain relief (and even with his supposed higher than average pain tolerance Neil Summerrell must have been in pain from a second degree burn) until 9.30/10.00 later that morning.

Lotfizadeh told the Inquest that at 6.00 when he arrived and was conducting the handover he heard a scream or shout from one of the residents. Mr Cahill specifically and quite vigorously denies any scream during the handover.

In order to objectively assess Lotfizadeh's evidence it is necessary to consider the evidence of those persons who received telephone calls from Lotfizadeh that morning. At 6.30am Mr Lotfizadeh phoned Mr Daley who was working at Desailley House (over the back fence) to ascertain certain mundane information about transport arrangements. It is beyond belief that had Neil Summerrell at that time been suffering from a second degree burn that Lotfizadeh would not have mentioned it to Daley. The only logical conclusion is that Lotfizadeh had not heard any resident scream before this time and that Neil Summerrell had not sustained his scald at that time.

It was not until 7.12 when Lotfizadeh phoned Daley for the second time that Lotfizadeh sought advice about what to do about Neil Summerrell's complaints of a "a sore back". Indeed the evidence disclosed that Lotfizadeh made a number of private calls at about 7.00 which is inconsistent with Lotfizadeh's more active, indeed urgent, inquiries and requests for assistance commencing about 7.46.

Daley advised Lotfizadeh he should be calling the oncall manager and was surprised that Lotfizadeh appeared to have no idea of the procedure to follow.

At 7.14am Lotfizadeh phoned Ms Gayle Rose, the accommodation support manager ("ASM") but was not able to contact her and succeeded only in leaving a message on her voice mail. · Lotfizadeh then made no other requests for assistance until 7.46am when he telephoned Ms Joanne Davidson on her mobile. He was advised that he should be calling the oncall manager. Lotfizadeh then telephoned the oncall manager at 7.49, and then in accordance with the instructions he was given by the oncall manager attempted to telephone Neil's GP, Dr Armstrong at 7.59. This was unsuccessful so Lotfizadeh telephoned CALMS at 8.00 Mr Daley gave his evidence in a straightforward positive manner and his evidence ought to be accepted particularly where it contradicts that of Lotfizadeh.

It is submitted that having regard to all the evidence, the most likely time of the accident lies between 7.00 and 7.12.

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service There was evidence from statements obtained from the treating doctors at the Canberra Hospital that the burn occurred from two to six hours prior to the presentation of Neil Summerrell at 10.00. The maker of that statement was not called to give evidence. Ms Isabel Harvey, the Clinical Nurse Consultant of Accident and Emergency (whose qualifications and experience particularly in relation to the treatment of burns was most impressive) who treated Neil that morning gave evidence that as at 10.00:

1. the clothes Neil was in at that time were damp from exudate

2. because no drying of the burn or sticking to the clothes had occurred, Neil had not been in those clothes for longer than an hour.2 There is no doubt that Mr Summerrell's clothes were not changed after 9.00, this is Ms Davidson's evidence.

Bearing in mind that Neil was suffering from a second degree burn, if Lotfizadeh changed Neil's clothes it can only have been an excruciating experience for Neil and probably explains those comments Lotfizadeh attributes to Neil Summerrell ("Sore, bastard").To that extent Ms Davidson's evidence that Neil Summerrell's pyjamas and also the bed sheets had been washed prior to her arrival (at about 9.00) and were hung out on the line when she arrived at the house explains the evidence from Ms Harvey.

The totality of the evidence is consistent with the following:

1. At approx 7.12 Neil suffers the scalding burn which eventually caused his death;

2. At 7.12 Lotfizadeh rings Daley, first objective evidence of any injury to Neil ·

3. From 7.12 to 7.45 no evidence Lotfizadeh did anything to assist Neil or obtain assistance for Neil;

4. At about 7.46 Lotfizadeh starts to· seek assistance and instructions regarding Neil's injuries

5. Between 7.46 and 9.00 Lotfizadeh changes Neil's clothes and washes them along with the bed sheets.

Lotfizadeh denies that he did the washing of the pyjamas and bed clothes.

I do not make any submission Lotfizadeh was in any way involved in Neil Summerrell sustaining his injuries, there is simply no evidence to support such a submission, but I do submit that Lotfizadeh has;

1. Lied about how and when the injuries occurred; 2 Ms Harvey's oral evidence and Exhibit 46

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service

1. Done nothing to allow or assist Neil to access medical and hospital services for a significant period of time, during which time Neil must have been in some significant pain;

2. Washed the pyjamas and bed sheets to conceal his inactivity and the circumstances as to when and how Neil was scalded.

Treatment at Canberra Hospital Professor Herdson and Dr Gillies have reviewed the evidence reparding the care provided at the Canberra Hospital for the Coroner. Dr Haertsch was not critical of the care provided to Neil Summerrell.

Professor Herdson asserts that the cause of death was sudden, unexpected, and unable to be prevented.

Dr Gillies gave evidence that largely supported the view that the death was not preventable and that the care Neil had received in hospital was appropriate.

Dr Kennedy from the Burns Unit of Concord Hospital in his evidence to the Disability Inquiry disagrees with much of the opinion given by Dr Gillies and Professor Herdson although he does say he would defer to the opinion of a gastroenterologist whether Ranitidine would have prevented the gastric erosions.

Dr Gillies was a gastroenterologist and was not prepared to say Ranitidine would have prevented the gastric erosions.

It must be remembered that Ranitidine also known as Zantac has side effects including a linkage to adverse central nervous system symptoms (remember Neil Summerrell already suffered from drop seizures), cardiac effects including bradycardia and premature ventricular beats and other gastrointestinal and hepatic symptomatology (see MIMS). It is not a medication to. be prescribed lightly.

The Community Advocate submits that the failure of the Hospital to take routine preventive action was the most proximate cause of Mr Summerrell's death but this submission is contrary to the evidence of Herdson, Gillies, Tran and Haertsch. It was not put to any of these witnesses that the failure to use a drug such as Ranitidine was something that is to be criticised. That being said the Canberra Hospital's Morbidity and Mortality Review Committee has recommended and the Hospital has accepted this recommendation, that Ranitidine be considered prophylactically in future burns cases and that vomits of "coffee grounds" must be referred at least to the a doctor at Registrar level.

There is nothing in the care provided at and by the Canberra Hospital, which ought to be criticised.

3 Exhibit 48

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service How was the burn of 29 November 1999 sustained? Did it happen in the shower?

The Community Advocate summed up the competing evidence very clearly and very concisely. I adopt much of her submissions in this regard.

Neil Summerrell was:

1. Capable of showering himself, there is strong support for the conclusion that he was quite independent, he had showered himself during a hospitalisation in 1998;

2. he would take himself to the shower around 6.15am, carers would hear or notice this and immediately attend to assist and be outside the bathroom door in case he had a seizure;

3. is most likely that he would do this of his own volition;

4. on mornings when he did not want a shower, it was difficult or impossible for carers to. get him to agree to a shower. He was reminded that his sister wanted him to have a shower in the morning because of his incontinence, and this was persuasive to him. There is no evidence of his habit being to wait for a carer to assist him or to ask for assistance.4

5. he could and did adjust the water temperature; the majority of carers assert this5 . One carer reports that on occasions he had the pressure too high or adjusted the taps6 , but the majority of carers found the temperature adjustment to be suitable.

It is therefore most likely that something quite unusual occurred for Neil Summerrell to be scalded. Neil's drop seizures do not explain his scald. Had he suffered a drop seizure he would have been in the shower under the scalding water for three or so minutes (Cahill gave evidence that Neil's drop seizures lasted 3 to 4 minutes) and Neil would have sustained a much larger and significantly more serious burn.

Ms Harvethl ought the explanation that the scalding occurred in the shower unconvincing because there were no track marks from the water falling down his body and because his feet were not burned.

4 the evidence that Mr Summerrell had said that he had waited for somebody to shower him is not supported by the history of Mr Summerrell showering himself and taking himself there unannounced; also see Merotto at Q6l for style of communication 5 oral evidence of Robyn Page, Dean Sturgeon an Jo Davidson 6 Exhibit 49 and oral evidence 7 Exhibit 1 TROC and 46 statement and oral evidence

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service Ms Davidson gave evidence that in hospital Neil Summerrell told her that he had a shower that morning. Lotfizadeh was adamant that he did not and that the accident did not occur on his shift.

The evidence is such, that in my submission, it is insufficiently clear, largely due to the state of Lotfizadeh's evidence, how Neil Summerrell came to sustain his burn. It is not open on the balance of probabilities to say that Neil Summerrell scalded himself in the shower and indeed the totality of the evidence is that it is more probable that the scald did not occur in the shower but by some other mechanism.

The only person who could tell how it occurred was and is Lotfizadeh.

The Community Advocate argues the equally probable scenario that a kettle may have scalded Neil Summerrell. There is as little evidence to support this proposition, as there is to support the shower theory. However I agree with the Community Advocate's conclusion that a major contributing factor to Neil Summerrell suffering a burn, and that burn becoming severe, was the fact that Neil was neglected by Lotfizadeh.

Did Neil Summerrell sustain a shower burn in April?

On Saturday 17 April 1999, a carer, Mr Devine, witnessed Neil Summerrell have a seizure in the bathroom and fall heavily into the bath. Devine examined Neil Summerrell and found that he had a lump on his head and a darkening mark forming on the back of his leg which he says did not look like a burn. Devine connected the lump on his head with the fall and thought the older looking mark on his leg had been caused by rubbing or chafing9 .

Neil Summerrell was taken to the Wanniassa Medical Centre that same day by Mr Sturgeon10 who thought it was not a fresh burn and he did not notice blisters but rather, dry flaky skin. He reports that the doctor had said it was either eczema or a reaction to medication. Neil Summerrell was prescribed Keflex antibiotics for the problematic injury on his left leg. Advice was provided to stop these if Neil Summerrell developed an allergic reaction (indicated by scratching, vomiting or rash). This was probably because Mr Summerrell was known to be allergic to penicillin and Keflex should be given cautiously to penicillin sensitive patients.12 On 19 April 1999, staff at Sharing Places noticed a weeping and inflamed injury on Neil Summerrell's thigh, 13 thought it was a blistering burn, and phoned [redacted] group house staff to advise. After he was collected from Sharing 8 Exhibit 14, Devine TROC Q34 9 Exhibit 14, Q42 onwards 10 Exhibit 13, Sturgeon TROC Q56 onwards 11 Exhibit 5, 17/4 12 MIMMS Annual 1999 entry under Keflex 13 Exhibit I, Reisch/Merotto TROC Q65 onwards

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service Places, his carer, Ms Young, also saw the injury on 19 April and recalls blisters .

She further recalls that Neil Summerrell saw Dr Craft on 19 April.

A medical admission to TCH occurred on 21 April 1999, arranged following a consultation with Dr Robertson (who works with Dr Armstrong), when Neil Summerrell developed cellulitis on the back of his left leg. Dr Robertson described this injury as oval shaped.

Much of the above has been "cut and pasted" from the submissions of the Community Advocate who has carefully analysed the evidence.

The conclusions to be drawn from this evidence are that it was not a hot water burn. Even were it to be a burn sustained from hot water then its size and shape indicate the burn could not have been caused by the Shower. In cross examination the relevant witnesses agreed with my suggestion the "burn" was the size and shape of the palm of my right hand. That is neither the size nor the shape of a shower burn.

Some witnesses say the injury was at the top /front of the left thigh, some say that it was on the back of the calf, other s say on the back of the knee. Further hypotheses or theories are that the injury was not a burn, but a skin irritation, an allergic reaction to penicillin15 , and inflammation exacerbated by urine incontinence in bed, or an allergic reaction to his other medication. For example, neulactil which can cause skin problems.

Indeed after the evidence on this issue even Mr Refshauge, Counsel assisting the Coroner agreed the suggestion of a shower burn in April was a "furphy".

The Community Advocate acknowledges the timely medical consultations organised on the part of the Disability Program, with medical professionals given opportunities to provide expert advice.

The Community Advocate submits: There is no evidence to conclude that the April injury was a shower burn and its cause cannot be connected with the cause of the scalding burn which led to Mr Summerrell's death.

I adopt this submission.

The Community Advocate further submits: in light of the combined history of the April injury and the October burn, there can be no finding that it was foreseeable that Mr Summerrell would sustain a burn at his home which would lead to his death.

14 Exhibit 12, Young statement page 3 15 Exhibit 7, 23/10

16 MIMS 1999

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service I also adopt this submission.

General

· The overall picture when has regard to all the evidence can be summarised as follows: ACT Community Care recognised the threat posed by hot water in Disability Homes, not just in showers or baths but throughout the entire home.

Temperature Regulating Valves or Thermostatic Mixing Valves were being installed throughout the Disability Program and had either prior to 29 November or since been installed in all such homes. They had not been installed at [redacted] House as at the time Neil Summerrell sustained his scald. These devices were not required by law to have been installed in the Group House.

These devices are not used in most homes in the general community, even those with children and the elderly. Perhaps they should.

Neil Summerrell was competent to shower himself and probably had done so on many occasions. The evidence does not support he scalded himself in the shower. Further, when ACT Community Care employees cared for Neil Summerrell he had not suffered any burns. He did suffer bruises and the like from his drop seizures. Whatever Lotfizadeh did, or did not do, that morning Neil Summerrell was not kept safe and Lotfizadeh was responsible for keeping him safe.

We do not know what happened that morning because Lotfizadeh will not tell us.

It is beyond doubt that Lotfizadeh has lied, he admitted doing so. We know from Ms Davidson's evidence that Lotfizadeh concealed evidence by washing the pyjamas and bedclothes. There is no evidence that Lotfizadeh intentionally harmed Neil Summerrell. There is ample evidence Lotfizadeh has hidden and lied about what did happen.

The care at Canberra Hospital has been supported by a number (4) of doctors and criticised by one doctor in another forum. Merely because one doctor differs in his approach to treatment, especially where that treatment regime is endorsed by four (4) other doctors, does not mean the treatment regime and plan is wrong.

There are lessons to be learnt however from the opinion of Dr Kennedy.

Powers of Coroner Pursuant to section 52(1) of the 1997 Act the coroner shall make certain formal findings as to the identity of the deceased, when and where the death occurred and the manner and cause of the death. The coroner may comment upon any matter connected with the death (ss52(4)).

The coroner may make recommendations to the Attorney-General on matters connected with the Inquest (s57(3)).

Unless a particular circumstance contributed to or is connected to the death it ought not to be the subject of comment. This would not prevent the coroner from

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service making recommendations on that circumstance pursuant to section 57. It is submitted that before a coroner may comment upon any matter he ought to be comfortably satisfied as to the accuracy of the circumstances surrounding that matter and also comfortably satisfied that the matter is connected to the death. In Anderson v 8/ashki (1993) 2 VR 89 Gobbo J concluded, as did Southwell J in Department of Health and Community Services v Gurvich (1995) 2 VR 69, that the appropriate standard of proof to be obtained to support a finding that a person contributed to the cause of death of another person was the standard commonly known to lawyers as the Briginshaw standard. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-3 Dixon J, as he then was, pronounced what is regarded as the classic formulation of the appropriate standard of proof in civil cases, stating: "... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect references ... When, in a civil proceeding, a question ·arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected." Both Gobbo and Southwell JJ considered that no finding that a person had contributed to the cause of death ought be made unless there was a comfortable satisfaction held by the coroner that the conduct complained of had been established as contributing to the cause of death.

In Commissioner of Police v Hallenstein (1996) 2 VR 1 Hedigan J at page 19 considered that the identification of the appropriate standards of proof and satisfaction was an important matter "that at all times must be borne in mind by any coroner" The power of the Coroner arises from the particular death being investigated.

The enquiry must be relevant in the legal sense to the death. This brings into focus the concept of remoteness. As was said by Nathan J in Harmsworth v State Coroner (1989) VR 989: "The issue of causation as exemplified by the above arguments has vexed philosophers and judges since Socrates was obliged to drink the hemlock".

I note that the relevant provisions of the Victorian Coroner's legislation the subject of consideration by Nathan J (Coroners Act 1958 Vic) is not materially dissimilar to the relevant provisions of the Coroners Act 1997 (ACT).

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service In Keown v Khan (1 May 1998 unrep) the Victorian Court of Appeal held that the reference to "contribution to cause of death" is a requirement that the person's acts or omissions were a cause of a relevant death. Callaway JA determined that the test of contribution was whether a persons conduct caused the death. There must be some causative link between certain conduct or circumstance and the cause of death or that conduct or circumstance is what was described by Callaway JA in Keown v Khan as being only a "background circumstance".

In Hallenstein Hedigan J relied upon the discussion by the High Court concerning causation in E & M.H. March v Stramare Pty Ltd (1991) 171 CLR 506. In that case the High Court considered that the test of causation was a "common sense" test. It is submitted that as a matter of common sense those issues identified by Counsel assisting the coroner could not have caused and therefore could not have contributed to the death of Mark Watson.

The next issue is what is meant by "connected with the death" in the sense those words are used in section 524) of the Coroners Act. It is submitted that these words connote some causative relationship but perhaps less direct than what is required to otherwise contribute to the death. If there were to be no requirement for some causative link to be established before a circumstance could be said to be connected with the death there would be no limits to those matters upon which a coroner could comment so long as there had been a death. Some causative relationship is necessary as otherwie a coroner could comment upon the management of a gaol if a prisoner died there from some obvious natural cause.

The Community Advocate has been very critical of the care provided by the Canberra Hospital. However those persons who provided that care were not called to give evidence nor cross examined. Drs Haertsch, Tran and Gillies and Professor Herdson were not critical of the hospital care. Dr Kennedy had a treatment regime different to that of Canberra Hospital. This is, in my submission, far from sufficient to ground or support those criticisms made by the Community Advocate. It would be unfair to criticise the care provided without calling those persons who provided that care to allow those persons to explain their actions, role and answer the Community Advocate's assertions.

Conclusion · With the exception of the Community Advocate's criticisms of the Canberra Hospital the Community Advocate's comments in her conclusion are of great utility and reflect her obvious expertise in the Disability field. I adopt those submissions.

That being said, there were obvious problems with "handovers" at the Group House. Such handovers ought to result in a document signed by both offgoing and oncomin carers. Similarly IP Plans ought to expressly and unambiguously set out what is required of carers and what is meant by supervision or monitoring.

I also consider the Coroner ought to recommend all homes, particularly those with small children or the elderly in the community install a TMV. The power to

Inquest into the death of Neil Summerill: Submissions of ACT Health and Community Care Service make this recommendation being found at section 52(4) or 57(3) to the Coroners Act.

1 also consider the Coroner ought to recommend to the DPP that proceedings be taken against Alan Lotfizadeh under section 81 of the Coroners Act.

Neither the Canberra Hospital nor the ACT Community Care, or their respective employees ought to be criticised.

As the Community Advocate has so persuasively argued, Disability Services is a terribly difficult field in terms of the competing interests of de-institutionalisation, dignity of risk, the type of care necessary and provided and the difficult task of caring for persons with disabilities. -

J • (· / ' Russell Bayliss Counsel for ACT Health and Community Care Service

INQUEST INTO THE DEATH OF NEIL SUMMERRELL 23.11.65-3.12.99 Submission by the ACT Community Advocate Heather McGregor This submission is respectfully made to the Coroner, pursuant to the functions and powers of the Community Advocate outlined in section 13 of the Community Advocate Act 1991. The Community Advocate's role in this inquest is to represent the interests of people with disabilities with an aim to make system recommendations towards improving the quality of services provided.

Mr Neil Summerrell died in The Canberra Hospital (TCH) on 3 December 1999, four days after a scalding burn and an admission, on 29 November 1999.

Background Mr Surrunerrell was a 34 year old man who worked half days at Pack 'n Post Koomarri and spent half days at Sharing Places. He had a mild to moderate intellectual disability, was quite independent and self caring, he had some communication skills, was vision and hearing impaired and suffered frequent epileptic drop seizures. There was consistent evidence given by a number of witnesses about two aspects of his person; that he was a man of routine, and that he had a very high pain tolerance.

Mr Summerrell resided with the L'Arche community from about 1982. His family maintained close involvement with him. Family members were first appointed his guardians and managers in 1994, In early June 1998, Mr Summerrell was admitted to the Psychiatry Unit of TCH following apparent behavioural problems presenting a danger to himself and others. The L'Arche organisation indicated that because of his unmanageable behaviour he could not return to their care following discharge, thus he was evicted from his home of 16 years. Respite care was arranged, however there was another admission on 23 July 1998 following police involvement because of his alleged violence, presumably in response to his fears about the threatening change to his home accommodation. He was discharged to the care of his sister on 27 July 1998. 1 1 Exhibit 22, TCH clinical notes

Following an extended stay with his family, where his behaviour presented no problems, Mr Summerrell effectively became homeless. Concerted multi agency efforts coordinated by the OCA to have him return to his home with L'Arche failed as it was concluded that he was no longer suitable for their community living arrangements. A funding application for an alternate form of care was not successful.

He was placed in Disability Program respite care in August 1998, where there were no reported issues with his behaviour. Following protracted negotiations with the purchasing department, problematic because of resource constraints, he was ultimately given a permanent home with the provider of last resort, the Disability Program, inJanuary 1999.2 The April injury It is necessary to examine the circumstances surrounding an injury to Mr Summerrell which occurred in April1999, to determine whether the cause of that injury was similar to the cause of the scalding bum which ultimately led to Mr Summerrell's death.

On 17 Apri11999 a carer, Mr Devine, witnessed Mr Summerrell have a seizure in the bathroom and fall heavily into the bath.3 Mr Devine examined Mr Summerrell and found that he had a lump on his head and a darkening mark forming on the back of his leg which he says did not look like a burn. Mr Devine connected the lump on his head with the fall and thought the older looking mark on his leg had been caused by rubbing or chafing4.

Mr Summerrell was taken to the Wanniassa Medical Centre that same day by Mr Sturgeons who thought it was not a fresh burn and he did not notice blisters but rather, dry flaky skin. He reports that the doctor had said it was either ecz ma or a reaction to medication. Mr Summerrell was prescribed Keflex antibiotics for the problematic injury on his left leg, and advice was provided to stop these if Mr Summerrell developed an allergic reaction (indicated by scratching, vomiting or rash).6 This was probably because Mr Summerrell was known to be allergic to penicillin and Keflex should be given cautiously to penicillin sensitive patients?

On 19 Apri11999, staff at Sharing Places noticed a weeping and inflamed injury on Mr Summerrell's thigh, s thought it was a blistering burn, and 2 History from OCA file 3 Exhibit 14, Devine TROC Q34 4 Exhibit 14, Q42 onwards s Exhibit 13, Sturgeon TROC Q56 onwards 6 Exhibit5, 17/4 7 MIMMS Annual 1999 entry under Ketlex 8 Exhibit 1, Reisch!Merotto TROC Q65 onwards

phoned [redacted] group house staff to advise. Mter he was collected from Sharing Places, his carer, Ms Young, also saw the injury on 19 April and recalls blisters9. She further recalls that Mr Summerrell saw Dr Craft on 19 April.

A medical admission to TCH occurred on 21 April1999, arranged following a consultation with Dr Robertson (who works with Dr Armstrong), when Mr Summerrell developed cellulitis on the back of his left leg. Dr Robertson described this injury as oval shaped.

The evidence is inconsistent about this matter. The various indications of an injury are that the injury was at the top /front of the left thigh, or that it was on the back of the calf, or the back of the knee. It is apparent that many people made an assumption that it was a burn which occurred in the shower.

There is some equivocal indication that Mr Summerrell said it happened in the showerto but no evidence to substantiate this. The TCH clinical notes would tend to support the hypothesis that the injury was a result of a scalding bum but this idea, and the idea that it had occurred in the shower, had been postulated only by Dr Robertson.

Given Mr Summerrell's level of independence in making himself a cup of coffee, or on another course, his night time incontinence which could have inflamed any skin irritation, no definite conclusion can be reached that the bum/injury occurred in the shower. Its oval shape would not be consistent with a shower burn in that the flow of the hot water onto the body generally results in tracking down the body. Further, the scalding burn hypothesis is not supported by the fact that the injury did not first appear as a wet blister, as a burn would, but blistered two days after it was first noticed, unlike the two day old progress of a burn.u Further hypotheses are that the injury was not a burn, but a skin irritation, an allergic reaction to penicillin12 and inflammation exacerbated by urine , incontinence in bed, or an allergic reaction to his other medication. For example, neulactil which causes drowsiness can also cause skin problems.13 There is evidence of timely medical consultations organised on the part of the Disability Program, with medical professionals given opportunities to provide expert advice. However the need for hospitalisation is evidence of one of two possibilities, either the initial treatment commenced on 17 April did not assist Mr Summerrell, or the treatment had an adverse effect on the injury.

9 Exhibit 12, Young statement page 3 10 Exhibit 1, Reisch!Merotto TROC Q66 11 Oral evidence oflsabel Harvey in relation to the bum of 29 November 1999 12 Exhibit 7, 23/10

13 MIMS 1999

There is an indication of the involvement of a number of different doctors' surgeries, hospital consultations for tests and hospital admissions, and the involvement of specialists, and an indication that not all medical professionals had the total picture. It appears that in April attendance on different general practitioners may have been problematic. The IP medical file was not comprehensive and this points to the need for objective scrutiny of safety and medical matters by a case manager or system manager who can provide coordination and oversight. (see Recommendations) There is no evidence to conclude that the April injury was a shower burn and its cause cannot be connected with the cause of the scalding burn which led to Mr Summerrell's death.

The October burn On 29 October 1999, Mr Summerrell sustained a burn injury at work, apparently while making himself a cup of coffee from a Zip wall heater. The extent of the injury had not been investigated thoroughly at Koomari when it occurred, and the incident report about the accident communicated back to the Disability Program indicated a burn to his hand but did not indicate that his chest and stomach had been burned.14 The extent of the burn was accidentally discovered when Mr Summerrell flinched in pain when a worker at Sharing Places tucked in his shirt.lS He was taken to Dr Armstrong on 1 November 1999, again on 5 November, and he had a blood test at TCH on 11 November.

There was evidence from Sharing Places16 that there is an arrangement with a communication book which travels with the person, so that carers can be informed about the person's day, any instructions which need to be followed, like medication, and anything untoward which has occurred. This is an excellent idea, if it could be guaranteed that carers would read this travelling communication book.

However there seems to have been insufficient attention given by Koomari to taking responsibility for an accident which occurred in their workplace. This points to the need for the Disability Program to review protocols with work places so that expectations of communication can be put at a higher level than occurred in this case. (See recommendations) It is submitted that, in light of the combined history of the April injury and the October burn, there can be no finding that it was foreseeable that Mr Summerrell would sustain a burn at his home which would lead to his death.

14 Exhibit 1, Davidson TROC Q229 15 Exhibit 1, Reisch!Merotto TROC Q75 16 Reisch!Merotto TROC, Q162

History of seizures Except for Mr Lotfizadeh, all the carers who provided evidence reported experiences of Mr Summerrell's drop seizures and the need to be aware of him when he was in vulnerable situations. Some people reported concerns about his changing from being an active person to somebody who slept a lot.

Many referred to medication changes and made a connection with his excessive sleeping17 • Following a referral from Dr Armstrong in April1998, when there were concerns about Mr Summerrell's difficult behaviour, on 1May 1998 Dr Buchanan wrote to Dr Armstrong1s indicating that because there had not been a seizure for three years he recommended a plan for medication reduction. He advised at the same time that this may cause a return of his seizures.

Certainly this seems to be exactly what occurred. Mr Summerrell went from apparently not having a seizure for three years to having regular and frequent seizures. Persistent concerns by the carers about Mr Summerrell's seizures are evident from May 1999 through to the time of his death.l9 · In early October 1999, concerns about Mr Summerrell's seizures again heightened, following reviews in June and August, and he was taken to his doctor on 20 October to query his changed medication regime.2o Mr Summerrell's medication was again changed on 11 November 1999. On 18 November 1999 Dr Heins inquired about Mr Summerrell's wellbeing following the medication change and was advised that he had improved greatly and was no longer sleeping excessively. The difficulty with getting a balance between his excessive sleeping and the control of his epilepsy is clearly evident. On 18 November 1999 Mr Summerrell had aCT scan but because of movement the results were not very readable.21 On 28 November Mr Summerrell had a seizure which lasted for 3-5 rn.inutes.22 Mr Summerrell had frequent appointments with Dr Armstrong during 1999 and there were reviews by specialists in relation to his epilepsy.23 His drop 17 Exhibit 2, 19/8,22/8,4/9,26/9,4110, also Reisch/Merotto TROC Q54 18 Exhibit 22 19 Exhibit 5, 17/5, 21/5, 18/6, 23/8, 26/81/9, 11111 -also Exhibit 7, 4/10, 13/10, 20/10, 19/11 -also Exhibit 2, 15/8, 17/8, 22/8, 8/9, 26/9, 4/10, 20 Exhibit 7 20/10 21 Exhibit2 22 Exhibit2

seizures did increase his vulnerability to accidents however many carers gave evidence that he recovered remarkably quickly. The attention paid to Mr Sununerrell's health needs by carers appears reasonable, and it certainly provided the people with the medical expertise, his general practitioner and specialists, with ample opportunity to make further requests or referrals if this had been deemed necessary, and to answer their duty of care obligations.

In relation to his medication regime, the picture of Mr Summerrell's life in 1999 is one which is dominated by unstable epilepsy, frequent drop seizures and minor injuries.

Manner and cause of death Although Dr Tran24 and Dr Haertsch25 have a contrary view, Dr Herdson asserts that the cause of death was a rare burn complication of extensive bleeding resulting from acute gastric erosions. He described the death as sudden and unexpected, given the observations of Mr Summerrell's vital signs, and unable to be prevented. Dr Gillies gave evidence which largely supported the view that the death was not preventable and that the care he had received in hospital was appropriate.

Dr Kennedy from the Burns Unit of Concord Hospital provides evidence that gastric erosions are a common sequelae after any burn injury.26 Dr Kennedy advises that erosions are extremely common with burns, and that the complications of the ileus is also very common with burns. The Burns Unit gives patients Ranitidine to reduce gastric acidity.27 Dr Kennedy also gives evidence that any vomit would be thoroughly investigated, and that if there were signs of internal bleeding, an endoscopy would be used to analyse the stomach contents.

It is submitted that on the basis of the evidence provided by Dr Kennedy from the Burns Unit of Concord Hospital, the failure of the hospital to take routine preventive action was the most proximate cause of Mr Summerrell's death28. Mr Summerrell should have been treated as a trauma patient and treated with Ranitidine, a drug to reduce gastric acidity following trauma.

Contributing factors to the cause of death 23 Exhibit 5 24 Exhibit 31 25 Exhibit 48 26 Inquiry transcript p 2191 (4) 27 Inquiry transcript p 2193 (15-28) 28 Inquiry transcript p 2195 (I)

The cause of death is analysed in an attached diagram. It is submitted that there were four major factors which contributed to the cause of death, that is, but for these factors the death may not have occurred. They are the neglect of Mr Lotfizadeh, the failure of Capital Health Call (CHC), the failure of ACT Housing, and the failure of TCH.

1. Mr Lotfizadeh failed to act responsibly either to prevent the burn or to respond adequately to the emergency.

The burn of 29 November 1999 When and how did it occur ?

At the end of the evidence put before the inquest, no clear account of what occurred during the morning of 29 November 1999 was provided. It does seem true that Mr Cahill who had done the overnight shift and Mr Lotfizadeh encountered each other when Mr Lotfizadeh arrived for work at about 6am.29 Both Mr Cahill and Mr Lotfizadeh were casuals employed by Capital Health Call (CHC), performing casual shifts for Disability Program.

Mr Cahill's attitude to his sleep over shift was very poor. (see Recommendations) His view was that he was at the house to sleep, and only to sleep, although he indicated that he would get up if he heard noise made by the residents during the night. He did not check on the residents before he went to sleep, nor did he check on them when he awoke in the morning.

Mr Cahill gave the impression that he knew and cared about Mr Surnmerrell, and that he was doing what was expected of him on a sleep over shift. He could easily have organised his evidence to make his performance look better, for example by inventing some checks on the residents during the night, or saying definitely that he would have woken up if the shower was turned on but he did not do this. His evidence that he did not see or hear anything from residents during the handover with Mr Lotfizadeh is preferred. It is also supported by the evidence about Mr Summerrell's routine and that his incontinence did not cause him to get up during the night to have a shower.3D Mr Daley's evidence about phone calls he received from Mi Lotfizadeh at 6.30 and 7.15am that morning is very pertinent in estimating the time of Mr Sumrnerrell's accident.31 The estimations contained in the medical evidence of when the burn occurred ranged from two to six hours prior to lOam. It is submitted that having regard to all the evidence, the most likely time of the accident lies between 6.15 and 6.45am.

29 Exhibit 8 and oral evidence 30 Exhibit 49 and oral evidence 31 Exhibit 50 and oral evidence

The main evidence against this proposition was Ms Harvey's estimation that when she saw him at lOam, the clothes he was in at that time were damp from exudate. She further asserted that because no drying of the burn or sticking to the clothes had occurred, he had not been in those clothes for longer than an hour.32 It is clear that Mr Summerrell's clothes were not changed after 9am, and Mr Lotfizadeh's evidence was that Mr Summerrell was dressed when he first saw him soon after 6am and that he did not change his clothes.

Given the level of pain Mr Summerrell was in, it seems implausible that he would have allowed Mr Lotfizadeh to change his clothes.

At 6.30am Mr Lotfizadeh phoned Mr Daley who was working at the adjoining house Desailley to make inquiries about routine matters like transport arrangements. It seems reasonable to conclude that he had not heard Mr Summerrell's scream at this time. At 7.12am Mr Lotfizadeh phoned Mr Daley again to ask for advice because he did not know what to do about the fact that Mr Summerrell was screaming in pain with a sore back.

It can be postulated from the telephone records 33 that Mr Lotfizadeh's awareness that Mr Summerrell had a problem occurred between his 6.30am call to Mr Daley and an attempt to call the house manager Ms Davidson at 6.58am. His level of concern must not have been high however, and clearly he had other matters on his mind, because he made other non-urgent personal calls before trying Mr Daley again at 7.12am.34 Mr Daley advised him he should be calling the oncall manager and was surprised that Mr Lotfizadeh appeared to have no idea of the procedure to follow. It is apparent that at 7.14am Mr Lotfizadeh phoned the accommodation support manager (ASM) (Ms Gayle Rose) and left a message on her mobile.

It would appear that Mr Lotfizadeh did not make any phone calls between approximately 7.15 and 7.45am. This may have been when he assisted the residents with breakfast and observed the burn on Mr Surrunerrell's neck.

Mr Lotfizadeh then phoned Ms Davidson's mobile at 7.46am and was again advised that he should be calling the oncall manager. He eventually reached the oncall manager at 7.49am, contacted the parents of the other resident, then attempted to contact Dr Armstrong at 7.59 and CALMS at Sam. He was advised to call Dr Armstrong after 9am.

The washing 32 Ms Harvey's oral evidence and Exhibit 46 33 Exhibit 54 Exhibit 54

It is unclear what Mr Lotfizadeh did between Sam and the arrival of other people at the house around 9am for a parent/ guardian meeting with an NRMA assessor. However the trigger to take Mr Summerrell to hospital occurred when Ms Davidson arrived at the house for the parent meeting sometime after 9am, discovered the seriousness of Mr Summerrell's burn and immediately took control. Mr Lotfizadeh had not phoned Dr Armstrong to get an appointment by the time Ms Davidson did this at 9.23am.

Mr Lotfizadeh's evidence was that he assisted with breakfast for the two residents, but offers no explanation for what else he did that morning and denies that he did the washing. Ms Davidson's evidence is that Mr Summerrell's bed sheets and pyjamas had been washed and hung on the line prior to her arrival shortly after 9am. Mr Lotfizadeh's motivation to deny this may be explained by a fear that it would be discovered that he was outside when the accident happened, and should have been supervising Mr Summerrell in the shower.

The morning shower routine In weighing up all the evidence about Mr Summerrell's morning shower routine, there is strong support for the conclusion that he was quite independent. Even during a hospitalisation in 1998, it is recorded in the clinical notes that he had showered himself.35 It is submitted that the most likely scenario is that he would take himself to the shower around 6.15am, carers would hear or notice this and immediately attend to assist and be outside the bathroom door in case he had a seizure. It is most likely that he would do this of his own volition, and on mornings when he did not want a shower, it was difficult or impossible for carers to get him to agree to a shower. He was reminded that his sister wanted him to have a shower in the morning because of his incontinence, and this was persuasive to him. There is no evidence of his habit being to wait for a carer to assist him or to ask for assistance.36 In weighing up all the evidence about Mr Summerrell's ability to adjust the water temperature, it is reasonable to conclude that he could because the majority of carers assert this 37 . 9ne carer reports that on occasions he had the pressure too high or adjusted the taps3s, but the majority of carers found the temperature adjustment to be suitable.

35 Exhibit 1, TCH clinical notes 2717/98 the evidence that Mr Summerrell had said that he had waited for somebody to shower him is not supported by the history of Mr Summerrell showering himself and taking himself there unannounced; also see Merotto at Q61 for style of communication 37 oral evidence of Robyn Page, Dean Sturgeon an Jo Davidson 38 Exhibit 49 and oral evidence

It is therefore most likely that something unusual occurred for Mr Summerrell to be scalded.

The accident Ms Harvey39 thought the explanation that the scalding occurred in the shower unconvincing because there were no track marks from the water falling down his body and because his feet were not burned. However, if he fell from a seizure, his neck, back and left buttock, where the burns were most severe, would have fallen under the direction of the shower and his stomach could have become scalded from the hot water on the floor. The shower recess is very small, and Mr Summerrell could have fallen with his feet and calves falling outside the reach of the hot water. The burn was more consistent with scalding occurring while he was lying down.

Later in hospital Mr Surnmerrell told Ms Davidson that he had a shower that morning. Mr Lotfizadeh was adamant that he did not and that the accident did not occur on his shift.

A possible scenario seems to be that Mr Summerrell took himself to the shower, perhaps between 6.15am and 6.30am when Mr Lotfizadeh was on the phone, had a drop seizure in the shower and knocked the cold water tap off when he fell. He got himself up, dressed himself and then began to feel the pain.

Against this hypothesis is the fact that had Mr Lotfizadeh been either in the office making phone calls or the laundry, he would have heard the shower turned on and Mr Summerrell fall. Even if his evidence is accepted that he went to the door briefly to lock it after Mr Cahill's departure, at about 6.10am, and had Mr Summerrell's accident occurred at this time, he should have heard or witnessed something.

If Mr Lotfizadeh had witnessed or heard the accident, as he should have done, he could have turned the cold water tap on Mr Summerrell and immediately called an ambulance, thus lessening the impact of the scalding.

The kettle?

Another possibility is that he had a drop seizure with the boiling kettle in his hand, thus the hot water poured over him as he lay on the floor. Ms Harvey thought this a possible explanation. This hypothesis is supported by the proposition that if he was burnt with his clothes on, the wet clothes would 39 Exhibit l TROC and 46 statement and oral evidence

have delayed the drying effect of the bum described by Ms Harvey, and may explain the fact that Ms Harvey thought his clothes had been on him for no longer than an hour.

Again, if Mr Lotfizadeh had been there or within close proximity, he should have responded as any carer trained in first aid would have done.

It is submitted that a major contributing factor to Mr Summerrell suffering a burn, and that bum becoming severe, was the fact that he was neglected by Mr Lotfizadeh.

It emerged from the evidence that Mr Lotfizadeh's strong, primary motivation was to have work and it is submitted that this self interested motivation was so strong that he resorted to dishonesty and dissembling out of his fear of losing his job.

Mr Lotfizadeh presented as a most inadequate carer and the revelations that he had claimed he was a nurse and submitted a fraudulent CV, along with his inconsistent evidence, establish him as an unreliable witness. Mr Lotfizadeh's attitude to his job was business like and task oriented, and he gave little indication of a consciousn ss about his responsibilities to the vulnerable residents. He put other matters ahead of a concern for a person who, on his evidence, was screaming out in pain from the beginning of his shift. He was self interested and fearfully defensive, and lacked human compassion obvious in other witnesses.

It is probably the case that whenever and however the accident happened, Mr Lotfizadeh was not near Mr Summerrell at the time, and then tried to cover up his neglect.

2. The failure of ACT Housing to install a temperature control on the hot water system in a contributing factor to the cause of death,if the scalding burn occurred in the shower.

The installation of a temperature control device would have prevented a scalding burn in the shower. It is apparent that ACT Housing had given the maintenance contract to Totalcare to carry out this work, but unfortunately, it was not carried out at [redacted] until after Mr Summerrell's death.

3. The failure of CHC to conduct responsible recruitment and to scrutinise qualifications, resulting in a person without first aid qualifications being employed, is a significant contributing factor to the seriousness of the burn sustained by Mr Summerrell.

The failure of Capital Health Call (CHC) to apply an appropriate level of scrutiny and oversight to their recruitment practices is also a significant factor relating to the performance of Mr Cahill and in particular Mr Lotfizadeh.

(see Recommendations) That Mr Lotfizadeh had lied about being a nurse was one factor not revealed because of a lack of scrutiny, however the failure to discover that he did not even have first aid qualifications is a very serious abrogation of duty and which in effect represents a failure in responsibility to the Disability Program.

A carer with first aid qualifications would have known to put a person with a serious burn into cold water, and if this had not been possible, then to call an ambulance. Instead, Mr Lotfizadeh spent about three hours achieving very little to assist Mr Summerrell, and thus prolonging and intensifying the stressful impact of the burn.

4. The failure ofTCH to respond adequately to Mr Summerrell's trauma and recognise and treat Mr Summerrell for complications of the burn was a contributing factor to the cause of death.

Mr Summerrell sustained second degree burns to 17.5% of his body. There is evidence that this burn should not have led to his death. He was extraordinarily vulnerable because of the burn and the fear and trauma we would expect him to feel, his level of disability, his inability to communicate about his pain or other symptoms, he had one kidney and had become dehydrated, he suffered epilepsy.

On the basis of the evidence provided by Dr Kennedy from the Burns Unit of Concord Hospital, the failure of the hospital to take routine preventive action wasthe most proximate cause of Mr Summerrell's death. Mr Summerrell should have been treated as a trauma patient and treated with Ranitidine, a drug to reduce gastric acidity following trauma.

There is in fact a rather stronger statement that can be made. In courts of law which are seeking to establish legal liability (and it is recognised that these proceedings are not) there is a general principle that only proximate causes will give rise to liability. In certain circumstances this general principle is formulated more specifically as the principle of novus actus interveniens.4o This principle holds that a cause further back along the causal chain will not give rise to liability if it is separated from the outcome by an intervening cause which was not reasonably foreseeable.41 In short, the intervening cause breaks the causal chain, from the point of view of legal liability.

40 Hart & Honore, Causation in the Law p.l 00 41 Hart and Honore, p.l06

It is reasonable to assume that preventive action would be routine in trauma cases. The failure of the hospital to take preventive action was not reasonably foreseeable. This breaks the chain of causation from the point of view of legal liability. In consequence, were these hearings seeking to determine legal liability, liability for the death would rest with TCH.

My concern, however, is not to make adverse comment but to identify all the factors which contributed to the death. Identifying causes in the sine qua non sense (factors but for which the death might not have occurred) enables us to nominate points of intervention which will make such a death less likely in the future. The causal analysis in this submission (see diagram attached) is more developed in relation to the Disability Program than TCH simply because that has been the focus of the coronia!inquiry.

The following aspects of Mr Summerrell's care are brought to the attention of the Coroner.

1. Poor handovers The quality of the information available to Dr Tran on 2 December about the coffee ground vomits was poor because of a poor handover by the nursing staff.42 A specimen of vomit was not kept by nursing staff for examination by Dr Tran, except for a stain on a towel4 A coffee ground vomit should have 3.

rung warning bells however because Dr Tran could find nothing wrong, he did nothing further. This approach failed to take into account the serious abnormality of coffee ground vomits. Dr Kennedy's evidence is that he would have wanted to analyse the stomach contents at that stage because it was evidence of internal bleeding.

2. Failure to consult Dr Tran was a Resident doing an overtime shift when he reviewed Mr Summerrell at 7pm on 2 December 1999 and despite a serious warning sign of coffee ground vomits, he did not consult a senior doctor for advice.

3. Failure to treat the trauma Dr Tran and Dr Gillies refer to the possible development of gastric erosions in· burns patients and that there is a prophylactic treatment. Dr Gillies indicated that the use of this treatment varied according to individual hospital policies.

42 Exhibit 31 para 2 43 Exhibit I, TROC Q24, Exhibit 31

Dr Tran and Dr Haertsch were unconvinced that death should have resulted from the burn, given its degree of severity. Dr Haertsch claims that acute gastric erosions are a known complication of trauma including a burn injury and this possibility cannot be discounted.

Dr Kennedy's evidence is that at Concord Hospital, prophylactic treatment is used routinely with burns patients to prevent the development of gastric erosions because they are such a common result of burn trauma.

4. How long did Mr Summerrell go unobserved ?

Dr Yeow formed the opinion when he found him dead that he might have had an epileptic fit because of the blood and froth coming from his mouth.44 Dr Parige advises that despite advice given to press the emergency medical button, this had not occurred and there was no attempted resuscitation.45 Dr Parige was called at 6.16am.

Dr Parige advises that the vomitus around his mouth and his neck was dry.

Mr Summerrell was certified dead at 6.23am.

Ms MacCullagh reports that she was contacted at approximately 6am by Ms King who advised that Mr Summerrell had died.46 Staff were addressed by Ms MacCullagh concerning the issue of their failure to call an emergency code; the staff's explanation was that it was too late to do so because Mr Summerrell was deceased and had been so for some time and was beyond resuscitation.

Ms Kotzur reports that at about 6am she commenced observation rounds and subsequently found Mr Summerrell had massive vomit all over his chest. Ms Kotzur failed to press the emergency button, went out to contact Ms Mackinnon and then they both went to the other side of the ward to find Ms King. Ms Kotzur describes Mr Summerrell as "too far gone and he was cold." She thought he may have been dead for an hour.47 Ms Mackinnon reports that she entered an observation in the patient progress notes at 5.30am but she may not have seen him at this time as the entry is made at the end of a round. When she and Ms Kotzur did the 6am rounds Ms Kotzur found him dead.

44 Exhibit 32 para 13 45 Exhibit 34 para 6 46 Exhibit 35 para 4 47 Exhibit 36 48 Exhibit 38

Ms King reports that Mr Summerrell had dried vomit all over his mouth. Ms King indicates that both nurses who found Mr Summ.errell were relief nursing staff, they did not follow correct procedure, and they should not have come to get her before calling an emergency code.49 It is submitted that the issues with Mr Summerrell's hospital care only fall away because of the particular cause of his death. For example, if Mr Summerrell had had a seizure and choked on his vomit, a review of his care would reveal failings, in particular, the level of observation and the failure to call an emergency procedure.

Mr Summerrell was a man with intellectual disability and an inherent inability to communicate except to a simple level. He had one kidney. He had serious epilepsy. He had a history of problematic injuries and drug allergies. His hospitalisation was delayed by at least three hours and there was serious fluid loss. He was not in a position to report symptoms to the staff, and he was known to have a high pain tolerance. It is submitted that because of all these factors, along with the burns, that he should have been kept under much closer observation through an admission to the intensive care unit.

It is accepted that ordinarily a burn of that severity would not have justified an admission to ICU, however in Mr Summerrell's case, where there could be no reliance on ordinary cues, there was an obvious need for an admission to ICU. (see Recommendations) Had Mr Sumrnerrell died during the night at his [redacted] home from a seizure, this inquest would probably be critically examining the level of care provided to him, in particular the frequency of observations. .

Conclusion Mr Sumrnerrell had quite a high level of independence and his life in the community was entirely viable. The worst issue for him was his unstable epilepsy, yet in his closing remarks to the Coroner his brother asked that his death not result in any return to greater restrictions on freedom for people with similar disabilities. The move into ordinary homes in the suburbs carne without immediate attention being paid to thermostatic regulators on hot water systems, yet the problem had been foreseen and action did not occur quickly enough.

The reliance on casual staff is something the Disability Program must struggle with, given the low status of carer positions and the deprofessionalising of the carer role.

49 Exhibit39

Training and familiarity are two key factors which are fundamental to quality care, along with highly professional management and oversight. This case points to the need for the Disability Program to induct casuals from other agencies in a more thorough way, perhaps by lengthening hand over periods when a casual is new, or introducing the concept of safety alerts which must be read and signed before the handover is complete.

The Canberra Hospital also employs casual staff, however these staff have professional training to fall back on. Issues with handovers and observations are apparent in this case which point to the need to TCH to review its policies in relation to burns patients, and patients who have extraordinary needs.

CAUSAL DIAGRAM Deinstitutionalisation and the rejection of the medical/ professional model of care Low status of carer positions and difficulties with recruiting qualified staff Community liv ing to normalise lifestyle High DP staff turnover and maximise because of demanding potential for nature of wo k Failure by ACT Housing to ensure that all DP houses have hot water temp control / Poor recruitment practices / / and qualification checking / Poor medical / by Capital Health Call / management The dashed arrow applies only if the shower scalding theory is assumed Carer's failure to attend to sca lding Inadequate hospital procedures & policies (not explored in the inquest) Failure ofhospital to take standard preventive action Death from gastric erosions

RECOMMENDATIONS

1. That the Disability Program develop policies and procedures in relation to any hospitalisation of a client to ensure that full investigations of the cause of the hospitalisation occur, followed by a thorough review of the guidelines in the Individual Plan.

2. That the Department of Health and Community Care review funding protocols with work places like Koomarri to ensure that incident reports are provided routinely, are reliable, and that communication about the worker/ client is timely and informed.

3. That the Disability Program review policies in relation to the expectations of carers doing sleep over shifts to ensure that there is clear understanding of what duties should be performed.

4. That the handover period now introduced include some requirement for staff to indicate that they have acquainted themselves with the residents and their care requirements, what assistance they need and what safety issues have been identified in the Individual Plan.

5. That the Individual Plan folder be seen as a comprehensive document and that safety alert information be compiled from it in short form and pasted to the front of the folder to give casual workers a ready guide to caring for residents.

6. That Disability Program review its induction procedures for casuals from other agencies.

7. That Capital Health Call improve its recruitment policies and practices to ensure that adequate qualification and referee checks are conducted before employing carers.

8. That The Canberra Hospital review its admission policies and criteria in relation to people with special needs and disabilities.

9. That ACT Housing provide certificates of compliance in relation to water temperature control valves prior to the leasing of houses to agencies providing supported accommodation to people with disabilities.

..

SUBMISSIONS TO THE CORONER ON BEHALF OF CAPAITAL HEALTHCALL PTY LIMITED IN THE INQUEST INTO THE DEATH OF NEIL SUMMERELL

1. Overview of Capital HealthCall Pty Limited's respectful submissions1.1 That the death ofNeil Summerell was a unique and unexpected medical complication arising out of injuries caused to Neil when he suffered scalding to 1712 per cent of his body.

1.2 That despite contradictions in evidence by witnesses appearing before the Coroner, there was no contribution to the scalding ofNeil by any carer in contact with Neil on 29 November 1999.

1.3 That there was no unnecessary delay in taking Neil to hospital by Mr Allan Lotfizadeh. If the Coroner should find against this submission, then it is further submitted that any delay caused by Mr Lotfizadeh did not contribute to the cause of Neil's death.

1.4 That there was no failure on the part of Neil's carers' employers to properly train or instruct the carers in the proper management and procedure of providing care to Neil.

If the Coroner should find against this submission, then it is further submitted that any·· failure by the employers did not contribute to the cause of Neil's death.

2. The death of Neil Summerell was a unique and unexpected medical complication arising out of injuries caused to Neil when be suffered scalding to 177'2 per cent of his body 2.1 It is submitted that it is agreed between expert medical evidence before the Coroner, that the cause ofNeil's death was a unique and unexpected medical complication arising out of the scalding to his body: 2.1.1 see Dr Herdson's report of 6 December 1999; 2.1.2 see Dr Herdson's report of 14 December 1999; and 2.1.3 see Dr Haertsch's report of 10 August 2000.

2.2 On 6 March 2001 Dr Herdson gave evidence before the Coroner that all ofNei1's clinical signs were indicative of a quick bleeding ulcer causing death "within minutes". Dr Herdson's evidence was that a curling's ulcer was multiple and superficial erosion ofthe gastric lining. Dr Herdson described the ulcer as if the lining had been rubbed with "sandpaper". The ulcer itself did not cause extensive bleeding. However, once the erosion "bore into an artery" the extensive bleeding caused death. Dr Herdson's opinion was that an endoscope at anytime prior to the extensive bleeding would not show up the ulcer.

2.3 Dr Gillies gave evidence before the Coroner on 7 March 2001 that the event of Neil's death was unexpected and unable to be predicted 24 hours before. There were no clinical signs ofthe eventual cause ofNeil's death, as coffee ground vomitus was "very common" in post operative or emergency patients.

3. No contribution to the scalding of Neil by any carer in contact with Neil on 29 November 1999 Julian Cahill 3.1 Julian Cahill was the carer for Neil between 11:00- 11:15 PM on_28 November 1999 to 6:00-6:15 AM on 29 November 1999. Mr Cahill was rostered on at [redacted] Place, Kambah, ACT ("[redacted] house") on a "sleep over" shift. On 5 February 2001, Mr Cahill gave evidence to the Coroner that during a "sleep over" shift the carer's duties included undertaking a "handover", settling the clients, sleeping at the house and "if there was a disturbance, to see what it was" (Cahill, Q352, 22.12.99].

3.2 On 5 February 2001, Robyn Page gave evidence before the Coroner that a "sleep over" shift did not involve an expectation to wake up during the shift and that she did not routinely check on the clients. However, her evidence was "if you're going to do a sleep over you have to be aware of what's going on around you. Urn, but also get to sleep" [Page, Q349, 11.12.99].

3.3 Mr Cahill's evidence is that he did• not hear the• s• hower goJ ing during his shift.

3.4 Mr Cahill's evidence is that he did not hear or see Neil during his shift.

3.5 In relation to Mr Lotfizadeh's evidence that Neil screamed and shortly afterwards walked to the toilet, at some time when Mr Cahill was in [redacted] house, it is submitted that the Coroner should prefer the evidence and recollection ofMr Cahill.

Mr Lotzifadeh has shown himselfto be an unreliable and untruthful witness.

3.6 Ifthe Coroner should find that Neil was scalded during Mr Cahill's shift, it is submitted that Mr Cahill did not contribute to the scalding injuries. Mr Cahill was carrying out his duties as required on a "sleep over". Mr Cahill cannot receive criticism for naturally sleeping through any event occurring in the house during his shift.

Allan Lotzifadeh 3.7 Mr Allan Lotzifadeh was the carerofNeil between 6:00-6:15 AM on 29 November 1999 to approximately 2:00 PM on 29 November 1999, when Neil was admitted in the Canberra Hospital. Mr Lotzifadeh was rostered on at [redacted] house

• on the day shift.

3.8 On 6 February 2001 and 6 March 2001, Mr Lotzifadeh gave evidence before the Coroner that Neil had suffered the "scalding" by the time he spoke to Neil at approximately 6:15AM, 29 November 1999. However, Mr Lotzifadeh's evidence is contradictory in the following ways: 3.8.1 His evidence on the chronology of phone calls he made is not consistent with the evidence of the record ofthe phone calls made from [redacted] house at the time; 3.8.2 His evidence of when he first noticed Neil's bum injury and when he first raised this issue with Mr Dennis Daley is contrary to the recollection of Mr Daley and the record of phone calls made from [redacted] house at the time; 3.8.3 His evidence that Neil had been scalded and had screamed during the time Mr Cahill was in [redacted] house, is vehemently denied by Mr Cahill; and

1.4 His evidence ofwho suggested the bum injury to Neil was "sunburn" was contradicted by Mr Daley and Ms Davidson.

3.9 It is submitted that Mr Lotfizadeh's evidence is consistent with Mr Lotfizadeh discovering, at sometime before 6:58 AM, 29 November 1998 (see exhibit 54, telephone records of[redacted] house), that Neil had suffered an injury and was complaining about that injury. This is the time Mr Lotfizadeh first tries to contact Ms Davidson, House Manager for [redacted] house. When he rang Ms Davidson he got her answering machine and did not leave a message [Lotfizadeh, Q138, 14.01.00]. He then rang his employer, Capital HealthCall at 6:59 AM on another issue. He then rang Mr Daley at Desailly House at 7:12AM, and received advice from Mr Daley.

He then rang Ms Rose, Accommodation Support Manager at 7:14AM, but again gets an answering machine [Ibid, Q142]. When Mr Lotfizadeh is unable to reach Ms Rose, he gives Neil breakfast [Ibid]. Mr Lotfizadeh then rang Ms Davidson again at 7:46AM. Ms Davidson directs him to ring the On-Call Manager [Ibid], which he does at 7:49AM. Shortly after this, he receives advice to contact Neil's local doctor, then the after hours medical service. Mr Lotfizadeh was directed to contact Neil's "doctor". Upon calling Neil's doctor, Mr Lotfizadeh was greeted by another answering machine, and directed to call the after-hours medical service. On calling this number, Mr Lotfizadeh did not receive any assistance [Ibid].

3.10 It has been previously submitted that given the contradictions in Mr Lotfizadeh's evidence with other witnesses, his evidence is to be considered carefully. However, it is submitted that Mr Lotfizadeh's evidence that he does not recall hearing the shower of[redacted] house in use during his shift, and that he first became aware of Neil's injury once Neil was dressed and complaining about the pain, should be accepted as full and frank accounts. Mr Lotfizadeh did not, therefore, by his acts or omissions, contribute to the event of Neil's scalding.

Other Evidence 3.11 It is submitted that there is evidence before the Coroner that Neil was capable of showering himself. Further that Neil regularly showered himself. The evidence for this submission is in the statements ofNeil's afternoon/evening carer on 28 November 1998, Ms Robyn Page [Page, Q189 to 191, 22.12.99], the [redacted] House Manager, Ms Jo Davidson [Davidson, Q106, 21.12.99 and page 2, statement of 12 February 2001] and Mr Dean Sturgeon [Sturgeon, Q32 & Q36, statement of conversation, 2 February 2001].

3.12 The role of the carer was then reduced to adjusting the temperature of the water of the shower, if required, and being present should Neil suffer from a drop-seizure of epilepsy. Even then, Neil regularly adjusted the water to a suitable temperature himself[Sturgeon, Q32, statement of conversation, 2 February 2001].

3.13 However, some carers were aware that the water temperature of[redacted] house was not regulated. Ms Page stated that, with the knowledge that the water temperature at [redacted] house was not regulated, she took "extra consideration" of this fact when Neil showered [Page, Q436, 22.12.99]. It is submitted that, with this knowledge and exercise of this extra care, [redacted] house's water temperature should have been regulated.

4. No unnecessary delay in taking Neil to hospital by Mr Allan Lotfizadeh and no contribution to the death of Neil 4.1 As detailed above, once Mr Lotfizadeh became aware of Neil's injury he acted responsibly and reacted as required. Once the gravity of Neil's injuries became known, Mr Lotfizadeh took Neil to the Canberra Hospital.

4.2 Ms Davidson, the House Manager of[redacted] house, is ofthe opinion that Mr Lotfizadeh's actions on 29 November 1998 had been appropriate as he "did what he was directed to do ..." [Davidson, Q752, 21.12.99]. Ms Davidson's only concern was that Mr Lotfizadeh had not called the "on-call manager first, because that is what you're s'posed to do ..."(Ibid, Q753]. Ms Davidson met with Mr Lotfizadeh at [redacted] house at about 9 AM [Davidson's evidence, 5.03.01]. When Ms Davidson gave her statement to the Australian Federal Police, she had been well apprised of the situation and the actions ofMr Lotfizadeh on the morning of29 November 1998.

4.3 Dr Herdson's evidence before the Coroner on 6 March 2001 was that the time taken to get Neil to hospital would not affect the prQgression of the curling ulcer.

5. No failure on the part of Neil's carer's employers to properly train or instruct the carers in the proper management and procedure of providing care to Neil Julian Cahill 5.1 It is submitted that Mr Cahill was an experienced disability support worker when he sought employment from Capital HealthCall. When Mr Cahill was interviewed by Capital HealthCall, his training in "competencies" with Sharing Places became known. He was then employed on shifts with other, experienced, employees before he was given shifts of his own: 5.1.1 Mr Cahill had worked with Capital HealthCall for 5 months prior to November 1998. Before this time, he had worked with Sharing Places for 7 months. During his time with Sharing Places, Mr Cahill had undertaken "competencies" of disability care, which he describes as "responsibilities ... and be observed doing these, ah - ah, efficiently or professionally to gain the competency" [Cahill, Q62- 67, 22.12.99]; 5.1.2 When Mr Cahill sought employment from Capital HealthCall he had his first aid certificate [Ibid, Q48], driving licence [Ibid, Q54], "experience" [Ibid, Q53 & 85], which included 7 months at Sharing Places, the competencies and completion of 3- months probation [Ibid, Q43]. At this stage, Mr Cahill had an interview with Capital HealthCall in which all of the above were discussed [Ibid, Q97]; 5.1.3 Once he commenced with Capital HealthCall, Mr Cahill was only employed on "buddy-up" or "double-up" shifts were he worked with an experienced disability carer until Capital HealthCall was satisfied that Mr Cahill had the training and ability to care for the clients on his own [Cahill's evidence, 5 February 2001].

5.2 Mr Cahill provided evidence before the Coroner on 5 February 2001. On this occasion he stated that Capital HealthCall had taught him to arrive 10 minutes early to do a "handover". This involved discussing with the carer which clients required support, the vulnerabilities the client had, and a money handover. Mr Cahill stated that he would rely on his experience when caring for the clients of each house, and contact the Accommodation Support Manager who was on 24-hours call [Ibid].

"Ian Lotfizadeh 5.3 Mr Lotfizadeh's evidence is that he did not receive any training from Capital HealthCall. It is submitted that Mr Lotfizadeh was trained by his employer during August 1998 when he undertook an induction course run by Mr Wallace on behalf of Capital HealthCall: 5.3.1 Geoff Wallace's evidence before the Coroner on 6 February 2001 was that he was a Trainer in the Induction Course of Disability conducted by Capital HealthCall.

Mr Wallace's evidence was that he had trained Mr Lotfizadeh in August 1998.

Mr Wallace's further evidence was that he trained his pupils in the use and resource of the Individual Plan; 5.3.2 Mr Michael McMenamin's evidence before the Coroner on 6 February 2001 was that he was a trained disability carer employed with Capital HealthCall. He had attended an Induction Course in Disabilities conducted by Capital HealthCall and run by Mr Wallace in August 1998. During this course, Mr McMenamin had seen and spoken to Mr Lotfizadeh who was also attending the course.

Mr McMenamin's further evidence was that this course included training on the use and resource of the Individual Plan. He also regularly referred to the IPwhen attending a shift; Capital HealthCall's training 5.4 It is submitted that Capital HealthCall does train its employees. It also takes into consideration each employee's experience and qualifications. On specific occasions, Capital HealthCall may vary an induction course if the individual employee has appropriate skills or training.

5.5 Mr Dennnis Daley's evidence before the Coroner on 6 February 200i was that when he was first employed with Capital HealthCall, he had undertaken an Induction Course conducted by Capital HealthCall. Mr Daley's further evidence was that the training included the use and resource of the Individual Plan. He also regularly referred to the IP when attending a shift.

5.6 Mr Dean Sturgeon's evidence in his taped record of conversation was that he had been employed by Capital HealthCall for 212 years [Sturgeon, Q17, 2 February 2001]. He had been advised by his employer to arrive at work "half an hour earlier ... [to] have time to read the urn IPs and the urn care plans for the clients" [Ibid, Q28].

5.7 Capital HealthCall also submits the attachment to these submissions marked with the letter "A" on the history of Capital HealthCall and its training programs.

Dated this Monday, 23 April2001 Paul Crabb Solicitor for Capital HealthCall Pty Limited

2410412001 16:01 FAX 026251 /ZJ CAPITAL HEALTHCA "':!:J V..L " A ,,

• 4 g f§ :. - - :¥ - f l:: .- .:

16- 18 PURDUE STREET BELCONNEN ACT 2617+ PO Box.Jl26 Belconnen ACT 2617 • Phone Ol-6l53 3868 Fax 02 251 8723 Chronology of Capital HealthCall Pty Limited· I am the sole director of Capital HealthCall Pty.Limited ("Capital HealthCall")- 1started Michelle's Nursing Service Incorporated in 1994.. This organisation was formed to provide nursing services to private residenls:·Nursing Homes and Hospitals in Canberra At first this business was based in my own home. Then in about 1996 I moved to rooms at Macgregor Shops. This began two rooms in 1997. In 1998 I moved the business to Suite 5, Professional Centre, Hawker Place, Hawker.and registered the company as Capital HealthCall Pty Limite<f:·- . . · · · · In February 1999. the Honourable Bronwyn Bishop, then Minister for Aged Care, and the Honourable Kate Carnell, then Chief Minister of the A.C.T, offici3:Jy opened Capital HealthCall's training rooms in our Hawker rooms Capital HealthCall was fortunate to win the Employer ofthe Year Award 1999. This Award was made by the Honourable John Howard, Prime Minister.

Finally in 1999, Capital Hea1thCall moved to its c ent premises in Purdue Street, Belconnen. These premises have two large training rooms and a large practical room which is set-up with medical bedsmoving-patient equipment, dummies and other equipment used in practical training COUI"SeS.

Capital HealthCall currently employs approximately 250 staff We daily supply approximately 80 to 95 staff to Disability Services.

Capital HealthCs.ll's in-house training and training programsIt became apparent to me in 1998 that the available training for people interested in working in aged and disability care was lacking in the AC.T. I then commenced a two-week induction course at this time. I advertised the courses in the local newspaper. For a fee, all applicants were able to undertake the induction course which lead to a Disability Support Worker qualification. I made it clear before the course started that some job offers would be made to participants, but not every one wou]d be offered a job. The reason I always made this known was because I wanted to only employ the best, most enthusiastic and reliable staff. For those participants who were not offered employment with Capital HealthCall, after completing the twoweek course they could get work witb other employers now that they had the qualification.

I have continued this practice, and approximately four times each year I advertise for these courses. The advertisements usually get approximately 20 bona fide responses.

In about 1999, Capital HealthCall changed its induction training from 2 weeks to 8 weeks. The participants graduated with a Level 2 Community Services Disability

CAP1TAL .tiliAL..ll:it....'\ and then required to complete a degree of competency in a number of areas such as:

• A 3-day Professional Assault Response Training (''PART'');

• Manual band1ing and lifting;

• Ethics and conduct (based on the professional conduct of registered nurses);

• Disability standards;

• Privacy Act issues;

• A current first-aid certificate;

• Epilepsy training;

• Basic nursing (genetics, brain injuries, anatomy, physiology and physical disabilities);

• Care issues (obser:vation, death and dying, spiritual and emotional needs of a client. communication skills, recreational actiyities and rehabilitation.

challenging behaviour, personal care and independence, duty of care and dignity of risk)

• Administrative care issues (care plans ("Individual Plans"], team dynamics, report writing and legalities).

Once a graduate of the induction course has been offered a position with Capital HealthCall, they must satisfy other requirements before employment \s confirmed:

• hold a full driv_er's licence; and

• pass a police check.

Once Capital HealthCall employs a new disability carer, he/she is then given "buddy up" shifts were they work with an experienced disability carer. Once the employee passes this supervised on-the-job training he/sbe is given his/her own shifts. Capital HealthCall tries to arrange shifts in 4 houses on a regular basis so that the carer becomes familiar with the clients and their needs.

Capital HealthCall also offer its employees a Level 3 Certificate, which is run part time over 12 months.

All training offered by Capital HealthCall is sanctioned by AC.T. Government regulation of the Traineeship Board in Canberra.

The Training Advisory Board has inspected the premises at Belconnen and stated that it was impressed with tbe resources and degree of training offered by Capital HealthCaU.

Capital HealthCall is currently waiting for its Registered Training Organisation accredititation.

Given its nwnbers of trained smff: Capital HealthCall is aware of its need to constantly update this training and keep its employees abreast of changes in disability and aged care. Capital HealthCall regularly holds one-day workshops where old and new skills and practices are discussed.

Capital HealtbCall's relationship with Disability Services·

...

Capital HealthCall has been supplying causal staff to Disability Services since 1996.

However.it was fortunate enough to successfully tender for those services.

Capital HealthCa11 has recently renegotiated a service agreement with Disability Services.

The futureCapital HealthCall bas continually sought to provide the best disability and aged care that can be obtained through appropriate training. This it has done by changing its induction course from 2 weeks to 8 weeks and carrying out regular in-service courses.

Capital HealthCall provides casual staff to Disability Services in the disability care industry and so is regularly faced with situations were immediate attention and care is needed. It has changed its practices, procedures and the training of its staffto best provide this service to Disability SetVices as well as the clients it cares for.

Capital HealtbCall has now been an integral part of disability care in the A.C.T. for over 5 years. Further changes to training of staff should include:

• strengthening training in tenns of the obligations of the carer to the clien

• exchange of training material and information between all disability providers in the AC.T.;

• to have clients and their parep.ts speak at induction courses and discuss their expectations: and

• Registration of all qualified disability support workers. The establishment of a register and Board of regulation and discipli.-1.e. It is thought that t ere 1s too much complacency in the field ofhealtb care workers. To provide the best care, more accountability is required through both uniformed training and registration.

Yours faithfully.

Christine Roberson Director Capital HealthCall Pty Limited

CORONERS COURT OF THE ) AUSTRALIAN CAPITAL TERRITORY ) CD No 280 of 1999

CORONER MICHAEL SOMES MAGISTR,6,TES COURT LODGED I ',.

INQUEST 1 7 SE --2003 .

3_ 1 :\c. -·- "!';"-'· into the death of

.4.USTR/>.LIAC/-<.PIT.A!_ TE R!TORY NEIL SUMMERELL FURTHER SUBMISSIONS ON BEHALF OF THE AUSTRALIAN CAPITAL TERRITORY These submissions are to be read together with those submissions already made and filed with the Coroner some time ago. A copy of these earlier submissions is attached for ease of reference.

The ACT Health and Community Care Service, which was in existence at the time of Neil Summerall's death has now been repealed and the program now comes under the auspices of the Australian Capital Territory.

Risk Management in the context of the death of Neil Summerell There is some difficulty in setting the most recent evidence of Ms Le Pavoux, Ms Gahan and Ms Hayes within the context of the inquest into the death of Neil Summerall. This is so as whilst the immediate cause of the death of Neil Summerall is clear, how Neil Summerall came to suffer the scald to his back is something which is far from clear. I have discussed this issue in my first set of submissions and I do not wish to revisit this issue except to say that until the exact mechanism by which the scald to Neil Summerall's back is determined it is difficult to determine what could have been done which would have possibly or potentially prevented that injury.

It can be said though that some form of temperature regulating valve ("TRV"; also

• !

known as a Thermostatic Mixing Valve or TMV") which would have reduced the

Inquest into the death of Neil Summerell: Further Submissions of the Australian Capital Territory heat of the water to such an extent that it would not have caused a scald, particularly to the extent that Neil Summerall suffered would have been something the system could have provided. The evidence is, however, that such a TRV was installed in the subject House and has been installed in each and every disability group house throughout the Territory.

That being said, these submissions address the issue as to what has been done to generally deal with the education and training of staff in relation to risk, concerning the work practices and the way in which care is provided to people with disabilities.

Commitment to Risk Management /Reduction The evidence of Ms Le Pavoux and Ms Gahan in their joint taped record of conversation with Sergeant Crozier and also in their evidence given on 2 September 2003 demonstrates the commitment of the Disability Program, now known as Disability ACT, to remove risk from the group houses. Ms Lynne Grayson gave evidence, whilst she held the position of Director of the Disability Program, of the commencement of these processes. It is clear from the evidence taken on 2 September 2003 that this process has continued. There has been some disruption caused by turnover in the position of Director but since the appointment of Ms Ros Hayes in February 2003 significant processes have been implemented to educate and alert employees, both full time and casual, of the need to critically examine work practices so as to remove the risk to clients.

What must be understood, however, is that the process of removing risk from a disability house is not simply a matter of visiting that house and watching how a particular staff member performs a particular procedure in relation to a particular client. The evidence of Ms Le Pavoux in this regard was most compelling1 • Firstly, one must be able to examine the practices of all of those persons who are going to be responsible for the care of all of those persons in a group house.

The necessity of examining the interaction of the needs of clients was shown I during the Inquest into the death of Brett Panting. The two other clients in Brett 1 see pages 50 and following of the transcript of 2 September 2003.

---

Inquest into the death of Neil Summerell: Further Submissions of the Australian Capital Territory Panting's house required supervision at all times or one might "pick on" the other.

Thus while one staff member was cooking tea the other staff member had to supervise these two clients. This gave rise to the construct whereby Brett Panting was allowed to bathe unsupervised.

Secondly; each client will have different care needs to which are attached a different set of risks.

The risks attached to providing care to a person such as Brett Panting are significantly different to the risks attached to providing care to a person such as Neil Summerall and, in the same way, those risks are significantly different to those the risks attached to providing care to a person such as James Johnson.

The evidence of Ms Le Pavoux, which was accepted and endorsed by Ms Gahan, was that to adopt and implement the best practice risk management principles, in accordance with the Australian Standards2 requires a multifactorial approach. The risk management resources available to the Disability Program are best spent in the educational programs referred by Ms Le Pavoux 3 that there is a "heightened awareness within the organisation of accountability"; and ''the education of the DSOs is quite intensive".

Casuals are educated and receive exactly the same education as the permanent staff4 and the casuals that come from agencies receive two weeks' induction within Disability ACT5 and there is an ongoing education program within Disability ACT. The Human Resource Development area of the Disability Program are responsible for the ongoing education of DSOs .

2 exhibit 79 3 particularly at page 17 of the transcript at line 20.

4 see line 45, page 17.

5 Ms Le Pavoux is part of that induction program - see line 5, page 18.

6 see line 9, page 18.

Inquest into the death of Neil Summerell: Further Submissions of the Australian Capital Territory Culture Change Page 19 of the transcript contains a very blunt example of the extent to which Ms Le Pavoux has gone to change any culture that may have existed which accepted or tolerated unsafe work practice. Ms La Pavoux gives evidence of the efforts of the Director (Ros Hayes) about who it is said: "... you can barely ever find her in her office to talk to because she's out with people at the coalface, now that's quite a different sort of approach to service delivery as what happened before".

The question is what is the best way to spend the risk management resources of Disability ACT? It is apparent from Ms Le Pavoux's evidence and Ms Gahan's evidence that it is not the best utilisation of those resources to, at this time, send them out to each home to individually inspect work practices, e.g. bathing of clients. Such a process would take so long that by the time each house has been visited it would be time to start again. One could only look at one small aspect of the care provided to some clients.

The best utilisation of those risk management resources is to educate staff at the DS01, DS02, and ASM levels to achieve an awareness of the potential risk and what should be done that risk. This is the best way to achieve some relevant risk management cultural change throughout the entirety of Disability ACT, to heighten the awareness of risk and to heighten the means by which risk can be minimised.

I say at this time because as the evidence of Ms Hayes shows, the Risk Managers have been dealing with issues that have arisen prior to the Risk Managers assuming their positions. To that extent the risk mangers have been dealing with a backlog. It was Ms Hayes' evidence that once that backlog can be dealt with then the Risk Managers will be able to attend at each home to examine the workplace practices.

Inquest into the death of Neil Summerell: Further Submissions of the Australian Capital Territory What is necessary is for staff to understand that there are inherent dangers in caring for people with a disability and that staff must always be "on their toes" to be aware of the potential for unsafe work practices and to do something about those unsafe work practices. To the extent that the 0501s require supervision then the DS02s need to be educated of the potential for risk particularly with established work practices.

Similarly, ASMs need to exercise a supervisory role over those persons at the DS02 level to ensure that there is appropriate supervision of those persons at the DS01 level. The responsibility for risk management rests upon every member of staff and responsibility to ensure that each staff member recognises and addresses that responsibility flows up the managerial chain. Education must be provided about risk and what is necessary to address that risk. Education is also necessary so that staff have an awareness of the consequences of failing to achieve best practice.

Need for expert Ms Le Pavoux spoke of the need to examine the totality of the risk in relation to houses. In order to do so experts may be required including electricians and/or plumbers. Obviously this would not apply to any examination of work practices such as those surrounding the bathing of Brett Ponting. That being said one would not have expected that there to be any need for an expert, indeed even a risk manager, to observe that leaving of Brett Panting alone in the bathtub was so unsafe that it should not continue. That such a process was unsafe is so obvious that one only has to relate the process to see the danger.

Proactive safety audits of group houses In my submission the Coroner ought to draw some comfort from the commitment to the risk management and the safety of clients of Disability ACT shown by Ms Le Pavoux and endorsed by Ms Gahan. As Ms Hayes said: ''There is a need for all staff to see risk as part of their responsibilities",

Inquest into the death of Neil Summerell: Further Submissions of the Australian CapitalTerritory and "What we need to do is to have all staff have that heightened awareness and see it as part of their responsibility to identify risk and to act on that risk whenever they might see it".

Ms Hayes did consider, however, that there was: "a need for a more proactive role in risk identification" and that this has created the need to "build in a program of visits proactively to all houses by Risk Managers at whatever period we can man ge".

Such a process was considered perhaps not to look at every procedure in every house but at least to have a look at the key areas of risk in the house and include such things as bathing routines. Ms Hayes agreed that there was a need for some external process to identify risks and tools of mechanisms that to help people and in particular there was value in external agencies being involved. It was suggested by the writer that there might be utility in WorkCover conducting an audit upon the Disability Program residences. WorkCover would have significant expertise in examining and inspecting workplaces.

Further, the Coroner should be comforted by the degree of contact between Ms Hayes and her Risk Managers. Ms Le Pavoux spoke in complimentary terms of the degree of contact had with Ms Hayes and the commitment by Ms Hayes to put in place appropriate risk management processes. Ms Le Pavoux gave evidence that Risk Managers send toMs Hayes a copy of their risk assessment report almost always on the same day or the following day.

Of most importance is the evidence of Ms Hayes that whilst agreeing that more Risk Managers could improve the situation within Disability ACT that she would: / 7 at page 86 of the transcript -------------------------------------------------------------1,

Inquest into the death of Neil Summerall: Further Submissions of the Australian CapitalTerritory "want to see a culture where all staff would take responsibility for risk and its management" Ms Hayes spoke compellingly of the danger that where the identification of risk is left to Risk Managers that people consider to identify risk is "somebody else's job". Ms Hayes' view is that she is attempting to establish "That for all staff the basic fundamental assurance made to all our clients is that we are responsible for their health, their safety and, you know, they are not being exposed to harm': Ms Hayes goes on to say that what is the difference between the events that have given rise to these inquests and the position at the moment is the "clarity of message". Ms Hayes' view is "Firstly, we must assure the basic safety and wellbeing of people and then from that base we can then provide for individual needs and community activity and so on".

The Coroner would also be comforted by the evidence10 that Ms Hayes has visited all except for a few of the Houses and there are some of the group houses that Ms Hayes has visited three or four times.

What the above evidence indicates is the commitment by Disability ACT through Ms Hayes and the Risk Managers, to deal with risk and to give the staff of Disability ACT the education, training and awareness to identify risk and to deal with that risk. The responsibility for risk management falls upon all persons and employees within Disability ACT.

The responsibility of supervisors, administrators at the DS02 and ASM levels is to ensure that those processes are followed and to ensure that those persons "at the coalface" comply with their risk management training.

8 at the bottom of page 86 of the transcript.

9 page 87 of the transcript.

10 at the top of page 90 of the transcript.

Inquest into the death of Neil Summerell: Further Submissions of the Australian Capital Territory Dignity of Risk There is one issue about which it is abundantly clear that there is a need for further education. That issue is the circumstances and content of what is considered to be covered by the term dignity of risk. Whilst the dignity of risk appears to be a very laudable concept as an attempt to have persons with a disability lead, as possible, a normal life it seems to be a concept which at best is misunderstood by certain persons who have given evidence before this inquest and the inquests into the death of Brett Panting and James Johnson and at worst is abused as an excuse to avoid some otherwise distasteful duties.

This is an area upon which education and training is needed. The safety of clients of Disability ACT must be seen as being the primary consideration not just a consideration to be balanced against convenience or ideological service delivery theories.

Is there a role for WorkCover?

There appears to be a role to be played by WorkCover in relation to the provision of assistance to the risk managers.

Obviously, the trained inspectors of WorkCover would have the kind of expert knowledge to which Ms Le Pavoux refers to- in her evidence in relation to such things as plumbing and electrical works, etcetera.

Recommendations

1. I reiterate what I said in my first set of Submissions that some awareness is to be given to the public in relation to the need to have temperature regulating valves, not just in disability homes but also in relation to any area where vulnerable persons are in the care of others, such as persons with a physical or an intellectual disability or a nursing home for aged persons.

Inquest into the death of Neil Summerell: Further Submissions of the Australian Capital Territory That being said, it would also seem to me that a temperature regulating valve should be installed in each and every residential house where young children live.

2. I consider a recommendation ought to be made that the concept of dignity at risk be the subject of review by the Disability Program, perhaps with the assistance of the Office of the Community Advocate with a view to moving towards training and education being given to each and every staff member of the Disability Program in relation to the need for risk to be seen as risk and not to be ignored relying upon the concept of dignity at risk.

3. That Disability ACT liaise with WorkCover to obtain the expertise of WorkCover to assist risk managers.

Russell Bayliss Ccoru-n (s)e l for the Australian Capital Territory J

INQUEST INTO THE DEATH OF NEIL SUMMERELL Additional submission by the ACT Community Advocate Heather McGregor This additional submission is made, following an examination of the material tendered by the Counsel Assisting Mr Richard Refshauge in June 2002.

OT assessment There is evidence that on 30 August 1999 Ms Zaieka Annen, an Occupatinal Therapist with the Disability Program, conducted an assessment and made a referral to ACT Housing, in relation to Mr Summerrell's showering. The report notes that "Neil is at risk of injuring himself when he experiences a drop fit [in the shower] and the referral is being made "to reduce accidents arising in shower when client has drop seizures and to enhance personal hygiene for client who is often incontinent".

Apart from an acknowledgement from Mr John Salcedo from ACT Housing, there is no indication that this referral for modifications to the showering arrangements progressed in any way before Neil's death.

Instructions to staff There is a two page typed list of notes and instructions to carers to assist with Mr Summerrell's care. The notes refer to his drop seizures, his high pain tolerance, and there is an instruction that Neil must be supervised at all times when bathing/showering. The notes say "Neil may have seizures and is in danger of scalding himself ... standing outside the accidents with hot water ...

Accident at Pack-n-Post It is recorded that on 28.10.99 Neil scalded himself at an urn, apparently while making himself a cup of coffee. This accident resulted in scalding burns, and lots of water being on the floor.

Seizures in the shower On 23.1.99 Mr Devine reports that Neil had a seizure in the shower. He heard a loud bang and found Neil lying on the shower floor.

On 3.5.99 a carer reports that she had previously always assisted/ supervised Neil in the shower. However on this morning Neil started to shower unaided. When the carer heard the shower, she went to check and found Neil partly lying on the shower floor having a seizure.

Conclusion With respect to this previously unavailable material, the following submissions are made.

Given the extensive documentation of Mr Summerell's seizures, his incontinence and his frequent showering, in particular during 1999, it is notable that the likelihood of his having a serious accident in the shower, through scalding, was identified, and had been referred to an OT for action.

It is also notable that he had previously been known to take himself into the shower, and had been found/heard having a seizure in the shower.

This emphasises the importance of what is actually done with information which is collected, and the need for objective, regular and expert risk assessments to be conducted. Further, a manager needs to be responsible for follow up to ensure that risks are addressed and managed, rather than just being assessed.

EXTRACTS FROM A BUNDLE OF DUCUMENTS With the following handwritten note on the front sheet 'To be placed into Neil's file please This is info relating to the OT assessing shower recess for Neil's benefit- personal hygiene and safety issues.

CateYoung"

CLIENTS DAILY REPORT NOTES 6.1.99 Neil attended [Sharing Places]- it was reported that all went well except for a short seizure in the bathroom <1 minute with typical quick recovery- Cate Young 23.1.99 Neil ... had a seizure in the shower at 7.25am- I heard a loud bang and I found Neil lying on the shower floor- M. Devine during March, numerous references to incontinence both while asleep and during the day - urinary tract infection - pain - blood test on 12.3.99 - numerous references to showers and wet bed 14.3.99 Had a seizure in bathroom and fell into bath- drs appt made at Wanniassa Medical Centre for 1700pm- M. Devine 21.4.99 appointment with Dr Armstrong- antibiotic- what looked like a burn on leg admission to hospital - infected leg 28.5.99 Rankle pain swelling after fall today- Xray 19.4.99 appt with Dr Croft today re Neil's blisters on leg 3.5.99 Seizure Observation Record I have previously always assisted/supervised Neil in shower. However this am he started to shower unaided. When I heard shower, I went to check and found Neil partly laying on shower floor. He was experiencing a seizure.

EXTRACTS FROM BUNDLE OF DOCUMENT Apparently a client file - 94760 1.9.99 Letter toMs Annon, ACT Community Care from John Salcedo ACT Housing 30.8.99 Letter from Zaieka Annon, OT disability Program to John Salcedo, ACT Housing enclosing an OT report 30.8.99 OT report-"... Neil requires assistance in his showering and is closely supervised because of his drop fits .. Neil is at risk of injuring himself when he experiences a drop fit [in the shower]" Consumer referral form "To reduce accidents arising in shower when client has drop seizures and to enhance personal hygiene for client who is often incontinent 18.11.99 CT brain report 2 pages of typed notes/instructions re Neil Neil has drop seizures and may injure himself Neil has an extremely high pain tolerance and may not be able to tell you if he is in pain Neil must be supervised at all times when bathing/showering Neil may have seizures and is in danger of scalding himself Standing outside the door, after setting the shower temperature for Neil can protect Neil"s privacy Neil has had accidents with hot water, so staff should make hot drinks for him 29.10.99 hand written note from Pack n Post the first I knew of Neil scalding his hand was the sound of a mug being broken in the kitchen -Neil had woken up and taken himself off to morning tea at 9.45 .. Neil was standing at the urn with a broken mug- lots of water on floor referral note, hand written, for Brain CT "burns on abdomen" (this note is undated) 22.10.99 Neil taken to Dr Armstrong- possible pneumonia 11.11.99 Dr Terry Heins writes to Dr Armstrong" ... he is unsteady on his feet, incontinent of urine night and day and has recently severely scalded his abdomen in an accident with boiling water ... "

Mr Michael Somes Coroner Inquest into the death of Neil Summerell I am attaching submissions I prepared in July 2002, following the tendering of material not previously tendered.

Thank you for sending the additional material to me. I have nothing further to add.

Heather McGregor Community Advocate 22 September 2003 copy to Russell Bayliss GSO Richard Refshauge DPP PO Box 1001 3rd Floor GIO House

CIVIC SQUARE ACT 2608 CANBERRA CITY ACT 2601 (02) 6207 0707 (telephone) (02) 62070688 (facsimile) heather.mcgregor@act.gov.au www.oca.act.gov.au

SUBMISSION FROM MR LOTFIZADEH

19 December 2003 Australian Capital Terril.ury Office of the Coroner GPO Box370

CANOERRA ACT 2601 Attention: Mr M. Snmes, Coroner D ar Sir INQUEST INTO THE DEATH Of' NF.lL SUMMERELL I refr to your letter d.atc::d 2 December 2003.

1 wih to make the folluwing statements in relation to the proposed comments set oul in your letter:-

1. That a."" the. c;urer ofNeil.'iummerell, y()ufuileti lo read the individual plan and nth< !' dtJc:umemation available at [redacted] Hor .. e. :so as 10 ensure that you were aware::- uf the requiremenrs and respon. ibllities relating to your care ofMr Summerall.

In rel11tion to lhi:s "omment I wish to state that I was aware of and had read the individual plan and other documents in relation to the requirements and responsibilities relating to Mr Summcrell':s care. 1n particular J wish to point out that when 1 arrived at work on the day in question, I checked the noticcboard and daily report to see whether there were any matters that 1 needed to be aware of in relation to the residents of [redacted] House, including Mr Summerell There were no such notices or anything in the daily report. Furthermore. I S.P-1kc to the employee who T took over from, his name is Julian (I cannot recall his surname). I asked him whether there was anything Inc :dcd to know about any of the residents, including Mr Summerell. He diu nut inform me of anything. I also point out that 1 <tid read the individual plan that day and noted that there had not been any change to it sinthe last time T had read it.

----·.--· -22. That a.IJze c:arer of A-Jr Summerell yo7J failed to ta'ke any or any reasonable .'ilep.v lo ensure thai Mr Summffrffll did rtut plllC<t him3e/f at risk 111 rile .!ilzower.

I wish to state that on the day in question, Mr Summerell did not have a shower at any time during my shift.

3. That a" clze carer (( 'Nfr Summerell you jailed co rake any or any reasonable steps to find out the nature of the injury sustained by Mr Summere:ll and /o take any or any rea.nmahle ,,·tep.'i lo ensure that Mr Summere/1 rec:<JIVed appropritJf<t treatment in '·elation to his injuries.

In respect uf this cmnmem I wish to state that shunly after arriving at work that morning, :Mr Sumrnc:rcll was already dressed. He appeared to be walking normally. I gave him brcakfn:\t and h.;; then sat in the livini room.

At une point I nutid he appeared to be in pain. 1 asked him several times if he was okay but h: dt:nit;:;c.l havinany prubh::m. I ul::su noticed that he was rubbing his back on the chair. At that point T noticed that he bad spilled some food on his jumper and r asked him if he would like to change his jwnpcr a.:s a way uf trying to :;cc what wa:s wrong with him. He refused to remove his jumper.

I i1l:K1 called the on-call manager on three occasions that morning. 'l'he f't.rst was to advise that l thousht there was something wronwith Mr Summercll. T was told that he might just be in a bad mood. When I called the second time. I told Lhc managr that Mr Summerell appeared to be having some problem or be in Sl)me in. She told me to b-rive him some Panadol. I attempted to do tbis but he refused to take the Panadol. 1 then calld a third time to inforn'l the manager that he would not take th Pnno.do1. J was then advised lo pla:;c the tableb with a glass of water ncar him. I did this.

When the manager arrived some time between 9.00am. and 9.30am. she managed to get his jumper orr him and saw that his back was burnt. I then immediately took Mr Sununcrcll to the Canberra Hospital. Emergency Department. Within minutes he was admitted to the hospital where I remained with him for some time before rclum1n!;; lo [redacted] HolLc;c.

Ido not agree with thcomments you propose to make in relation to myself in this matter as I believe that 1 acted in n proper and reasonable manner at all times in re:s "t of Mr Summerell.

:

-31 alsu request that. if al all possiblethat my name be withheld from publication in your report.

I a]so request that pursuant to Section 55(3) of the Coroner's Act 1997 that my Statement, or a fair swnmacy ufit, be included in your report.

Yours faithfully f7 .------ ) , Alan Lotfizaach ---